Comparative law and justice/Israel

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72.200.157.223 05:21, 11 February 2011 (UTC)

Basic Information[edit]

Demographic characteristics[edit]

Israel is located in the "Middle East, bordering the Mediterranean Sea, between Egypt and Lebanon." [1]

Middle-East-map

As of July 2010, an estimate of the total population of Israel is 7,353,985. In 2009 it was estimated that approximately 296,700 Israeli settlers live in the West Bank. In 2008 it was estimated that approximately 19,100 Israeli settlers live in the Golan Heights and also in 2008, approximately 192,800 Israeli settlers were estimated living in East Jerusalem. [2] Israel ranks in 96th place in comparison to the 238 countries in the world.[3]

Israel has a total area of 22,072 sq km. It has a total land area of 21,642 sq km, and a total water area of 430.[4] Now, compared to the rest of the countries and their areas in the world, Israel ranks number 152. [5] Overall, Israel is somewhat smaller than the state of New Jersey.

It's bordering countries are Egypt (266 km), Gaza Strip (51 km), Jordan (238 km), Lebanon (79 km), Syria (796 km), and lastly West Bank (307 km). Palestine's temperature is usually hot and dry in southern and eastern desert areas. Israel's terrain has the Negev desert in the south, a low coastal plain, central mountains, and the Jordan Rift Valley.

Because of it's hot and dry weather Israel tends to have natural hazards such as sandstorms. These sandstorms may occur during spring and summer. Also, many droughts and periodic earthquakes. It's natural resources are timber, potash, copper ore, natural gas, phosphate rock, magnesium bromide, clays, and sand.[6] "Lake Tiberias (Sea of Galilee) is an important freshwater source; there are about 355 Israeli civilian sites including about 145 small outpost communities in the West Bank, 41 sites in the Golan Heights, and 32 in East Jerusalem (2010 est.)."[7]

Age Structure:

  • 0-14 years: 27.9% (male 1,031,629/female 984,230)
  • 15-64 years: 62.3% (male 2,283,034/female 2,221,301)
  • 65 years and over: 9.9% (male 311,218/female 402,289) (2010 est.)[8]

The total median age for people in Palestine is 29.3 years. For males it is 28.6, and for females it is estimated to be up to thirty years of age. (2010 est.)[9]

Population Growth Rate:

  • 1.628% (2010 est.)
  • country comparison to the world: 75[10]

When it comes to nationality, people in Israel are considered as Israeli(s).

There are a couple of ethnic groups in Palestine besides the overall main group which of who is the Jewish population. The Jewish population is 76.4% "(of which Israel-born 67.1%, Europe/America-born 22.6%, Africa-born 5.9%, Asia-born 4.2%), non-Jewish 23.6% (mostly Arab)." (2004)[11]

One may assume to think that in Israel there is only one religion and for that to be Jewish, but Jewish isn't the only religion that exists. The Jewish religion has the highest percentage standing at 75.5%. Muslim comes along in second place at 16.8%. The Christian religion holds 2.1%, and Druze at 1.7%. Lastly, there is "other" religions which is the smallest percentage of them all standing at 3.9%. Arabic is the official Language of Israel. Though Hebrew is used officially for the Jewish minority. In Israel the most commonly used foreign language has to be English.

Brief History[edit]

There are three layers of law that reflect the historical background of Palestine. These "can be identified in various degrees in contemporary law: Ottoman, British Mandatory and Israeli."[12]

During the years of 1517-1917 Palestine was ruled by the Turks as part of the Ottoman Empire. The local law was dominated by codes. "The Mejelle, an Ottoman codification of civil law, held a major role. Drafted by Moslem scholars, it was influenced by Napoleon’s Code Civil and published in 1867-1877 by the Ottoman Sultan."[13] The Mejelle had a variety of legal provisions for obligations, torts, property, commerce, corporation and procedure. The Mejelle was repealed in 1984 by a special Israeli law. The Mandate and the following Israeli legislature cancelled most of the Ottoman laws, leaving only a few that still exist today. "For example, articles 80-82 of the Ottoman Civil Procedure Law (1879) are a part of Israel’s evidence law. The contemporary significance of the Ottoman legal system arises from the basic legal rule by which a legal system does not deny rights previously given by a former legal system. Thus, although the Israeli Real Estate Law rescinded the Ottoman Real Estate Law, it protected rights that had been gained according to it."[14]

"In 1917 the British troops defeated the Turks and occupied Palestine. At first the British ruled by martial law, but a civil administration was in force de facto by 1920. After obtaining the Mandate on Palestine on July 24, 1922 from the League of Nations, the British started ruling de jure. On August 10, 1922 the Crown published an Order in Council, ratifying previous British legal actions and setting forth the Mandatory government structure. Article 46 of the Order in Council, which stated that a lacuna in the domestic law would be filled by absorption of English law, was the channel through which the English Law ruled in Palestine. Article 46 was rescinded in 1980 but its impact was profound and transcended its formal existence, as the reliance on British judge-made law contributed to the confidence in the creative power of the local courts. Another type of legislation was the ordinances enacted by the High Commissioner for Palestine in his capacity as legislator, and regulations issued by him in his capacity as executive. The jurisdiction of the Mandatory Supreme Court, dominated by British judges, was similar to the prerogative power of the High Court of Justice in England."[15]

"On November 29, 1947 the United Nations General Assembly passed a resolution calling for the establishment of a Jewish state in Eretz-Israel."[16] The Israeli legal system finally came into existence on May 14, 1948 "when the British relinquished the Mandate over Palestine and the People's Council (a body representing the Jewish community) proclaimed the establishment of the State of Israel."[17]This proclamation was known as the "Proclamation of Independence," and it "ensured the governing continuum by stating that until the election of the permanent authorities, the People's Council would act as Provisional Council of State, and the People's Executive (the executive organ) would constitute the Provisional Government."[18]

"The legal continuum was achieved by the first enacted law – the Law of Administrative Ordinance (1948), which provided that the existing law would remain in force subject to the laws which would be enacted and to such modifications as might result from the establishment of the state and its authorities."[19]

The Constituent Assembly was elected when an ordinance was passed by the Provisional Council. The first law to be enacted was in 1949, known as the Transition Law. The Transition Law basically held the main foundations, the base for the permanent government. This law came to declare that "the Israeli parliament would be named “Knesset” and that the Constituent Assembly would be named “The First Knesset”."[20]The first Knesset came to establish one of the most important laws of Israel. This was the Law of Return which was enacted in the year 1950. This Law simply expressed the historical connection that Jews had with the land and it guaranteed every Jew to hold the right to not only immigrate to Israel but also automatically become citizens of this country.

"Hostile relations between Israel and the surrounding Arabs states, military confrontations that took place from the very inception of the state and prevailing security problems have always had a fundamental impact on various aspects of the Israeli psyche. Thus, in 1948 the Provisional Council exercised the right given by the Administrative Ordinance and immediately declared a state of emergency in Israel, a declaration that still holds and which is periodically prolonged by the Knesset."[21]

During the Six-Day War that Israel had in 1967, Israel ended up capturing many territories. These territories included the eastern part of Jerusalem, part of Jordan (the West Bank), the Egyptian Sinai Peninsula and the Gaza Strip, and the Golan Heights region of Syria. "Eastern Jerusalem was annexed to Israel in 1967 and the Golan Heights Law (1981) declared the application of Israeli law to the region. The other territories were under a regime of belligerent occupation, ruled by martial law by virtue of public international law. Nevertheless, the Israeli Supreme Court has been exercising review over the military commanders, stating that they are obligated to operate according to the provisions of Israeli administrative law such as the rules of natural justice. On the basis of the Camp David Accords (1978) and the Egyptian-Israeli Peace Treaty (1979), Sinai was returned to Egypt."[22] In 1994 there was a peace treaty done between Israel and Jordan. Through this peace treaty, it was able to redefine the permanent boundary between both countries. "As part of the peace process with the Palestine Liberation Organization (PLO) and according to the Oslo accords signed in 1993 and 1995, the Palestinian Authority gained various degrees of control over some of the territories of the West Bank and the Gaza Strip."[23]

"In 2004, after the State of Israel had come to the conclusion that there is no reliable Palestinian partner with which it can make progress in a two-sided peace process, it had developed the plan of unilateral disengagement. Accordingly, in 2005 Israel evacuated the Gaza Strip, including all existing Israeli towns and villages, and redeployed outside the Strip."[24] "The disengagement plan was based on the argument that Israel needed not maintain the status-quo only because it could not move to a final-status agreement in one step. Instead, it could make incremental progress aimed at improving its military, political and economic position."[25]

Still, to this day, final agreements have not been reached. Because this conflict continues, it influences greatly the political, social economic and all legal conditions in Israel.

Economic Development, Health, and Education[edit]

Economy: "Israel has a technologically advanced market economy. It depends on imports of crude oil, grains, raw materials, and military equipment. Despite limited natural resources, Israel has intensively developed its agricultural and industrial sectors over the past 20 years. Cut diamonds, high-technology equipment, and agricultural products (fruits and vegetables) are the leading exports. Israel usually posts sizable trade deficits, which are covered by large transfer payments from abroad and by foreign loans. Roughly half of the government's external debt is owed to the US, its major source of economic and military aid."[26]

GDP (purchasing power parity): $217.1 billion (2010 est.) country comparison to the world: 51 $210 billion (2009 est.) $209.6 billion (2008 est.) note: data are in 2010 US dollars.[27]

GDP (official exchange rate): $201.3 billion (2010 est.)[28]

GDP - real growth rate: 3.4% (2010 est.) country comparison to the world: 103 0.2% (2009 est.) 4.4% (2008 est.)[29]

GDP - per capita (PPP): $29,500 (2010 est.) country comparison to the world: 47 $29,000 (2009 est.) $29,500 (2008 est.) note: data are in 2010 US dollars.[30]

GDP - composition by sector: agriculture: 2.4% industry: 32.6% services: 65% (2010 est.)[31]

Birth Rate: 19.51 births/1,000 population (2010 est.) country comparison to the world: 98[32]

Death Rate: 5.45 deaths/1,000 population (July 2010 est.) country comparison to the world: 176[33]

Infant Mortality Rate: total: 4.17 deaths/1,000 live births country comparison to the world: 202 male: 4.34 deaths/1,000 live births female: 3.99 deaths/1,000 live births (2010 est.)[34]

Life Expectancy at Birth: total population: 80.86 years country comparison to the world: 16 male: 78.7 years female: 83.12 years (2010 est.)[35]

School Life Expectancy (primary to tertiary education): total: 15 years male: 15 years female: 16 years (2008)[36]

Literacy: definition: age 15 and over can read and write total population: 97.1% male: 98.5% female: 95.9% (2004 est.)[37]

Education Expenditures: 6.4% of GDP (2007) country comparison to the world: 30[38]

Governance[edit]

Israel's Heritage

"The vague reference in The Foundations of Law Act to “principles of freedom, justice, equity and peace of Israel’s heritage” was a source of some controversy as it raises the question of religious law as a formal source of law. Some interpret the phrase as synonymous with Jewish law, but the common view is that it refers to the “Jewish tradition”, which is a wider concept than “religious law”."[39]

Usage and Custom

"Until 1984, usage and custom were also formal sources of law, by virtue of the Mejelle. Whereas, the bill for the rescindment of the Mejelle stated that as far as a custom had been absorbed into the Israeli system there was no intention to root it out, The Foundation Act does not mention custom or usage."[40]

The Political System

"The Israeli political system was described by Professor Eli Salzberger as an “intriguing combination of a Westminster and a Continental-European type of parliamentary democracy, with an increasingly effective American flavoring.”"[41]

The President

"The head of the state is the president, elected by the Knesset in a secret ballot for a seven-year term. Basic Law: President of the State defines the functions of the president, which are primarily ceremonial and formal, such as signing new laws and accrediting Israeli diplomatic representatives. In addition, the president exercises the discretional power to pardon prisoners or to commute their sentences."[42]

"After elections, the President holds consultations with all the parties elected to the Knesset (Parliament), after which he formally designates one Member of Knesset (usually the leader of the largest party) to form a government. Changes in the law since 1996 made it possible for the Prime Minister to dissolve the Knesset; however, to do it he must first obtain the consent of the President."[43]

The Knesset (The Parliament)

"The House of Representatives (The Knesset) is a single-chamber legislature consisting of 120 members, elected every four years. According to Basic Law: The Knesset, the elections are general, direct, equal, secret, and proportional countrywide. The "proportional" system of elections means that any list getting more than 2% of the votes makes it to the Knesset. The inherent fragmentation of the society is reflected by the number of parties. The resulting fragmentation of the Knesset always requires coalition-governments, i.e. the Prime Minister and the large parties are "hostages" to the small parties and any crisis can result in a vote of non-confidence."[44]

"The Knesset is a unique parliament because it not only enacts general legislation, but it also serves as a Constituent Assembly, the capacity in which constitutional laws are enacted. Another task is supervision of the Government, which serves by confidence of the Knesset."[45]

"The Knesset fulfills its functions by plenary, in which all its members sit, and by standing committees. The committees’ duties include inter alia the preparations of bills, which have to undergo three readings in the plenary in order to pass and become laws of the land."[46]

The Government

"The Government, which heads the executive branch, is the main policy-making body, composed of cabinet ministers and headed by a prime minister. Most of the ministers are responsible for one or more departments of the administration, but ministers can also serve without portfolio. All the ministers are collectively responsible to the Knesset, for the decisions and actions of the government as a whole and for those of each individual minister."[47]

"The government, like all other authorities, must base its acts on law according to the principle of legality. Beyond the powers specified in various statutes, Basic Law: The Government states that subject to any law, the government is competent to perform any act that is not enjoined by law upon another authority. The extensive functions of the executive branch have tended to result in a growing bureaucracy. The new government formed in May 2006 is Israel's 31st government, which reflects a life expectancy of merely 22 months per government."[48]

List of Government Ministries Currently, there are twenty Government Ministries[49]:

  1. Prime Minister's Office
  2. Ministry of Defense
  3. Ministry of Finance
  4. Ministry of Foreign Affairs
  5. Ministry of Interior
  6. Ministry of Justice
  7. Ministry of Public Security
  8. Ministry of Environment
  9. Ministry of Education, Culture and Sport
  10. Ministry of Agriculture and Rural Development
  11. Ministry of Science and Technology
  12. Ministry of Construction and Housing
  13. Ministry of Health
  14. Ministry of Immigrants Absorption
  15. Ministry of Social Affairs
  16. Ministry of Transport
  17. Ministry of Tourism
  18. Ministry of Industry trade and Labor
  19. Ministry of Communication
  20. Ministry of National Infrastructures

The Judiciary

"The judicial authority in Israel is independent, which means that in the fulfilling of its functions it is not dependent on another authority or person. This independence is both personal and material. Personal Independence is ensured by the manner of appointment of the judge, his promotion, the length of his term of office, the condition of his service, his salary, his immunity and matters of judicial discipline. Material Independence is provided by Basic Law: The Judicature, which declares that “in the discharge of his judicial functions, a judge is subject only to the law”."[50]

"Court sessions are public except under special circumstances where the law permits holding closed hearings. Israel rejects the institution of lay judges, so jurors do not participate in court proceedings. The system is adversary, namely the Anglo-American method of adjudication, in which the responsibility for finding the truth rests almost exclusively with the opposing parties and their lawyers, through examination and cross-examination. The attorneys are supposed to adduce and analyze sufficient material on which the court may base its decision. When more than one judge is presiding and the judges do not agree on the decision, the opinion of the majority prevails."[51]

The State Comptroller

"Basic Law: The State Comptroller charges the comptroller with the duty to supervise the ministries and other government institutions, the security forces, the local authorities and any other body that is subject to inspection under the law. In the process of control, the legality of the assets, finances, undertakings and administration of the bodies is examined. Appointed by the Knesset for a period of 5 years, the state comptroller answers only to the Knesset and is not dependent on the executive branch. The state comptroller also serves as a public ombudsman dealing with complaints regarding state authorities."[52]

The Israeli Defence Forces (IDF)

"The Israel Defense Forces (IDF) is a popular militia rather than a professional army, based on compulsory military service and reserve service. According to Basic Law: The Army, the IDF is completely subordinated to the government, which appoints the senior military authority on the recommendation of the minister of defense."[53]

Structure of the Judicial System

"According to Basic Law: The Judicature, the system of the General Law Courts (the Regular Courts) is comprised of three instances based on hierarchy"[54]:

  1. The Supreme Court
  2. District Courts
  3. Magistrate's Courts

"Each instance has a well-defined jurisdiction elaborated in the Courts Act [Consolidated Version] (1984). Any court can have residuary jurisdiction over a matter which falls within the exclusive jurisdiction of another court only when such matter arises by virtue of being incidental to a matter properly before the court and within its own legal jurisdiction."[55]

  • Magistrate’s Courts

"The Magistrate’s Court is a trial court. Its authority is to deal with civil cases in which the sum claimed is not higher than 2.5 million New Shekels (approximately US $560,000), criminal cases concerning light and intermediate offences, and some real estate cases. Some of the judges are appointed in the capacity of traffic magistrates and empowered to try traffic offences and a range of offences related to vehicular traffic. Magistrate's Courts can also be empowered to act as Family Courts, Juvenile Courts, Municipal Courts and Minor Claims Courts."[56]

  • District Courts

"The five District Courts have a double authority as trial courts and as appellate courts. As trial courts their jurisdiction is residual to the limited jurisdiction of the magistrate's courts. In addition they hear civil and criminal appeals from rulings of the magistrate's courts."[57]

"According to the Administrative Affairs Court Act (2000), judges in the District Courts can also be authorized to deal with some disputes between citizens and administrative authorities. The Administrative Affairs Court deals with issues specified in the authorizing law, and the rest of public law issues still go directly to the High Court of Justice. This system is not equivalent to the separate system of administrative courts in continental countries, which have their own exclusive jurisdiction. Like magistrates, District Court judges may be empowered to sit as juvenile judges."[58]

The Supreme Court

"The Supreme Court, situated in Jerusalem, has jurisdiction in two realms. Sitting as “The Supreme Court of Appeals” it hears civil and criminal appeals from the final judgments of District Courts sitting as trial courts, and appeals on leave from final judgments of District Courts sitting as appellate courts. Furthermore, carrying on the tradition of the British Mandate, the Supreme Court, sitting as the “High Court of Justice”, obtained the power to supervise governmental agencies." [59] "In this capacity it has the original jurisdiction to supervise administrative actions of state authorities and statutory bodies, when petitioned by individuals who feel that they have been wronged by these bodies. This influences the scope of review as the High Court perceives its function not only as settling disputes, but also as a guardian of the rule of law, which includes basic values and administrative fairness. The High Court of Justice functions by means of prerogative orders (extraordinary remedies). The Supreme Court’s rulings are final."[60]

Specialized Judicial Bodies

"Another part of the judicial system consists of tribunals of limited jurisdiction; each of them comprises an independent judicial system with an administration, permanent trained judges, and two instances. Usually, there is no right of appeal to the Supreme Court, and the only way to attack a final judgment is by a petition to The High Court of Justice, whose jurisdiction over the second instance of those tribunals is supervisory rather than appellate."[61] The three important tribunals are:

  1. Religious Courts
  2. Labor Courts
  3. Military Courts

Religious Courts

"Israel continues the Ottoman tradition, which was not changed by the British Mandate, of according autonomy to the various communities on matters of “personal status” (personal, family and inheritance law). There are religious courts for the four main religious denominations: Jewish, Moslem, Christian and Druze. Each of them tries, on the basis of its respective religious law, cases applying to members of its own religious community who are citizens of the state. For example, Rabbinical Courts have exclusive jurisdiction in matters connected with marriage and divorce of Jews, and concurrent jurisdiction in other matters of personal status." [62] "In cases in which secular and religious courts have concurrent jurisdiction, the plaintiff, by choosing the court, determines if religious or state law will be applied. Although Basic Law: The Judicature authorizes the High Court of Justice to review the religious tribunals only on matters concerning their authority, it has expanded its intervention in order to liberalize their judgments."[63]

Labor Courts

"A separate system of Labor Courts began functioning in Israel on 1st September 1969 in accordance with the Labor Court Law (1969). Three principal aims made it necessary to establish this special court system. The first was the concentration of judicial jurisdiction for the implementation of employee’s rights. The second was the desire to raise professional standards in dealing with particular issues which are also of a public nature and to accelerate the pace of judicial action while reducing their cost. The third was the improvement of labor relations."[64]

"The Labor Courts are of two instances: Regional Labor Courts and a State Labor Court. Both instances comprise judges and representatives of the public. The State Labor Court deals with appeals, but it has also a trial jurisdiction mainly of disputes involving workers’ and employers’ organizations. A party can appeal to the Supreme Court only from a criminal verdict of the State Labor Court, whereas over civil judgments the High Court of Justice exercises judicial review on the grounds of serious deficiencies such as want/excess of power, substantive error of law or infringement on the rules of natural justice."[65]

Military Courts

"The military courts’ system, which includes trial courts and a court of appeal, was established in The Military Justice Law (1955). Its authority is to try soldiers for military offences, and under certain conditions – also for civilian offences. Courts martial of the first instance consist of District Court Martial, Special Court Martial, Traffic Court Martial, Naval Court Martial and Field Court Martial. The first three are permanent courts and the two latter are established ad hoc for each case. The decisions of all these courts are subject to review by appeal to the Appeals Court Martial. A right of appeal to the Supreme Court is available if the judgment of the Military Court of Appeal raises a legal question of importance or difficulty." [66]

Arbitration

"Arbitration is one of several means recognized by Israeli law for solving disputes outside the courtroom (the other means are compromise and mediation). Arbitration is acknowledged by the judicial system as an external assistance to the courts, aimed at relieving them of part of their heavy burden. Arbitration is widely used in private and commercial disputes mainly because of its expediency." [67] "The Arbitration Act (1968) enables parties of a civil matter to agree to solve their dispute by arbitration rather than in court. The arbitrator may be nominated in a contract’s arbitration clause, or in an ad hoc arbitration agreement signed after the dispute arises, or appointed by a third party upon whom the parties agree. The parties are also free to agree upon the other components of the process: the determination of the applicable law, the procedure and rule of evidence to be applied, the deadline for the delivery of the award and other conditions. Unless otherwise requested by the parties, the proceedings are not subordinated to evidence and procedure rules applied in courts. There is no appeal of the award, and the only way to attack it is by an application to the District Court to set aside the award due to one of the reasons recognized in the law."[68] Staffing

"All the authorities carry out the shaping of the judicial body, through the manner of judicial appointment, to ensure that the considerations taken into account are all relevant and material. Judges are selected and promoted by the Judges Nomination Committee, headed by the minister of justice and composed of nine members: three Supreme Court judges, two ministers, two members of Knesset and two representatives of the Israel Bar Association."[69] "Upon nomination, the president of the state formally appoints the judges. As all Israeli judges are professional, a lawyer’s diploma is prerequisite for appointment as a judge. Thus, magistrates are usually selected among experienced attorneys and can be promoted to the higher courts after certain periods in office. Law professors and other key position jurisprudent persons (like the attorney general) can be appointed to high instances directly. Appointment is permanent, with a retirement age fixed at seventy."[70]

"There are four university faculties of law in Israel, and it is also possible to get a law degree at several private colleges. It takes three and a half years to graduate, followed by one year of internship. License to practice law depends on admission to the Israeli Bar called the “Chamber of Advocates” and a prerequisite is passing the bar exams. Once admitted to the bar, an attorney may engage in any legal activities. The English distinction between barristers and solicitors was not adopted in Israel. The number of lawyers in Israel as of 31.12.2004 was 31,311. This is a very high ratio of lawyers to the total population." [71] "The bar is operated by virtue of the Chamber of Advocates Law (1961), which regulates its powers and functions. The bar is empowered, inter alia, to lay down the rules of ethics and professional conduct of its members and to exercise disciplinary jurisdiction over them."[72]

Courts and Criminal Law[edit]

Punishment[edit]

PENALTIES AND SENTENCING

When it comes down to the sentencing process, the one who determines the sentence is the court. [73]

If in any case after the court has decided to convict or to declare that the defendant has committed the offense but will not be convicted, there is a pre-sentencing hearing. During the pre-sentencing hearing both the prosecution and the defense have the chance to bring in evidence that may either aggravate or mitigate the penalty.[74]

During the sentencing process both the prosecution and the defendant can have an input, but is is different inputs on both sides. For example, the prosecution is able to bring in evidence of previous convictions that the accused may have. The defendant on the other hand may introduce evidence and at the same time be examined. But the defendant also has the chance to make a statement without being examined and can present evidence in mitigation. If the defendant is under 21 years of age, the court will make the decision to not sentence him to imprisonment without first receiving the report of a probation officer. The court can also request a report of a physician or any other expert as needed.[75]

2. Types of penalties.

There is a range of penalties permitted under Israeli law. -The penalties permitted are:

  1. Death
  2. Imprisonment
  3. Conditional imprisonment
  4. Fines
  5. Community Service
  6. Labor Service
  7. Bond to abstain from committing an offense
  8. Make defendant pay victim compensation & costs
  9. May order forfeiture of the proceeds of the crime. [76]

There are also mandatory penalties in the Israeli system, but these come to be very rare. When these penalties occur the court has the right to impose any sanctioned punishment. During cases of traffic offenses, the court may take away someone's driver's license and/or car license. If drug offenses are done with the person being involved in a profession, then the court may temporarily remove the professional license of this person.[77]

Probation can be imposed either without conviction or after conviction. But if a person is receiving treatment for drug addiction, then there is a special probation conditional. If someone commits serious sexual offenses, offenses against the life of a person or any offenses that caused serious bodily harm, then the punishment here comes down to prison terms that vary in length. But if the crime committed is murder or kidnaping a child or a helpless person just to murder as well, then these persons will be punished to obligatory life sentences.[78]

Those who commit property crimes are usually given short prison terms. Drug traffickers receive prison terms that vary in length depending on the seriousness of the crime, and this goes as well with Fraud offenders.[79]

The death penalty is available in two cases:

  1. offenses against humanity and
  2. against the Jewish People committed by the Nazis and their abettors; treason in war time.

Believe it or not, but the death penalty has been imposed only one time in the history of the State, and this was against Adolph Eichmann.[80]

There are 11 prisons in Israel and 3 detention centers. There are 5 maximum security prisons, 2 minimum security, 1 prison for juveniles, 1 prison for women, and the rest are prisons of mixed categories.[81] As of August 1994, there were 5,300 criminal prisoners, 150 of which were women. [82] The Israeli Prison System's Diagnostic and Classification Center attached to the Central Detention facility screens some 300 inmates monthly.[83]

The table below shows actual or estimated proportions of inmates incarcerated as of January 1994:[84]

Crime Type Daily Average
Sexual offenses 5%
Drug crimes 27%
Bodily harm 5%
Life endangering 7%
Property crimes 30%
Fraud 3%
Other 19%

Prisons are administered through the Israel Prison Service (IPS). The Commissioner of Prisons is at the top of the hierarchy. The commissioner is appointed by the Government on the recommendation of the Minister of Police. The Israel Prison Service Commission is the administrative body in charge of the management of the IPS. The Commission consists of two Administrations:

  1. The Management or Planning Administration is run by the Chief of Staff.
  2. The Institutions or operational department is run by the Deputy Commissioner.[85]

The prisons are distributed in three Districts: Southern, Central and Northern. "The function of the Institutions Administration is to provide professional guidance to senior commanders and administrative staff in all IPS facilities with regard to security, inmate education and rehabilitation, inmate classification and movement, and communications. The Planning Administration is responsible for the Personnel and Training Divisions which are in charge of all personnel matters, including recruitment, training, and supervision." [86]

"The IPS's centralized computer system contains all prisoner files, including relevant data as to decisions of release boards and disciplinary measures. The IPS and the Police are under the authority of the Minister of Police."[87]

There are about 3,325 employees in the IPS. All these guards are enlisted personnel and each hold ranks similar to those used in the Israel National Police.

  • About 68% of these deal with security of the inmates
  • 23% are administrative staff, and
  • 9% deal with the welfare and care of the inmates.[88]

In order to become a Prison guard there are certain qualifications you need to have and one does have to undergo training. Prison guards are recruited only after being done with secondary school and after completing a basic course for prison guards which lasts from 4 to 5 months. There are special courses that also last 4 to 5 months for non-commissioned officers. The courses for commanding prison officers may either be for regular prison officers or for prison officers doing non-security work such as treatment, social work, or education programs for the inmates. These courses may last for 3 to 5 months. Every professional person working in the prisons have a university degree in either criminology, medicine, psychiatry, social work, or education.[89]

"The yearly budget for the IPS is approximately 450 million N.S. (approximately $150 million)."[90] In 1994 there were 408 prisoners awaiting trial.[91]

When it comes down to remissions, there is no automatic total or partial remission of the sentence. A Release Committee may order the release of prisoners who have served two-thirds of their sentence. Usually, time off can be granted if one is on good behavior. Also, the Minister of Police may grant special permission to release a prisoner because of very serious health conditions. The overcrowding of prisons in Israel actually forced the Knesset to pass a special law authorizing administrative release of prisoners when the number of prisoners exceeds a certain maximum. The President of the State may also pardon the sentence of any offender at any time. [92]

But sentenced prisoners are not just left in their cells, and forgotten. Prisoners are offered the opportunity to work and are offered also education and privileges, but all this according to their behavior. [93]

Family and friends are allowed to visit inmates but it all depends on the length of the sentence and the behavior of the prisoner. Prisoners are allowed to receive and send letters, and to receive parcels. Towards the end of their detention time, many prisoners have been permitted to start working outside of the prison grounds and all do have the chance to receive rehabilitation help. The physical treatment of inmates includes: medical treatment, treatment of drug abusers within the prison system and dealing with AIDS. Each inmate is tested for HIV antibodies. If one ends up being positive, those people are treated in cooperation with AIDS clinics attached to local hospitals and are kept in separate cells in the regular wards.[94]

EXTRADITION AND TREATIES

"Offenders and suspects may be sent to other countries if they are not Israeli citizens when committing the crime for which the extradition is demanded and if there is an extradition treaty between Israel and the requesting country. When extradition is not permitted because of the citizenship of the demanded person, Israel has jurisdiction in order to bring him or her to trial in Israel for the offense for which the extradition was demanded." Israel has extradition treaties with a great variety of countries. These countries are: Australia, Austria, Belgium, Canada, Czech Republic, Cyprus, Denmark, Fiji, France, Germany, Holland, Hungary, Iceland, Ireland, Italy, Luxembourg, Norway, Poland, Portugal, Slovak Republic, South Africa, Spain, Swaziland, Sweden, Switzerland, Turkey, United Kingdom and the United States.[95]

Above all this, prisoners may not be exchanged or transferred to other countries. [96] "Being a signatory of some multilateral treaties which have sections on extradition, Israel may use those treaties as a basis for extradition. This is the case concerning the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970) and the Convention on offenses and certain other acts committed on board aircraft, signed in Tokyo in 1963. After ratifying the U.N. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna 1988, of which Israel is a signatory, it will be possible to use that Convention as a treaty to extradite from Israel people who have committed drug trafficking offenses."[97]

Legal Personnel[edit]

Law Enforcement[edit]

“The Police Force is a Central and Important Component of Every Regime and in Every Society. In every type of regime in existence, there is a social institution whose aim is to maintain public order, enforce the law and ensure the regime's continued existence and stability.”[98] The Israeli Police Force deals with preserving public order, crime prevention and law enforcement, keeping the peace and providing services connected to personal and public security. The work of the Police is carried out with accessibility and attention to the requirements and interests of the people. This is why the Israeli Police Force has adapted its work methods in the community to take into account the social changes that occur in the environment it operates in.[99]

Historical Background

"And the LORD said unto Moses: 'Gather unto Me seventy men of the elders of Israel, whom thou knowest to be the elders of the people, and officers over them."(Numbers, Chapter 11, Verse 16)[100]

The idea of Hebrew Policing is of great importance in the tradition of Israeli Society since Biblical times. For police of Biblical times it was important to preserve social order because this symbolized the independence of the Jewish people.[101]

The "Shomer" Organization – the Foundation of the Hebrew Police

“The first steps in operating a Hebrew Police System in Israel were the establishment of the "Shomer" (Guards) organization during the rule of the Ottoman Empire, the Hebrew gendarmerie and the Hebrew Settlements' Police during the period of the British Mandate that formed the basis on which the Israeli Police Force was founded with the establishment of the State of Israel.”[102]

“At the beginning of the twentieth century, during the period of the Ottoman rule, new Jewish settlements began developing in Palestine. The immigrants immediately faced serious security problems and the authorities did not prevent attacks on them by hostile neighbors. The need to protect body and soul became crucial to their survival and laid the ground for the establishment of the Shomer.”[103]

Organization "In 1909 the members of the "Shomer" Organization in the Galilee declared themselves to be the herat of the Hebrew Police and the Palestine Hebrew Gendarmerie. Their function was to protect the Jewish inhabitants from Arab rioters. "The Hebrew Policemen" of the period reduced the number of attacks by Arab neighbors and prevented attacks on the Jewish settlements in which they operated, risking life and limb."[104]

The Period of the British Mandate

"The Excellent Police Force"

"When General Allenby defeated the Turks in Palestine in December 1917, he ordered Police Stations to be set up in all the population centers that seemed "important" to him. They included all the local units and private police in the settlements, neighborhoods and organizations (ghaffirs, Arabic for supernumerary constables). A gendarmerie that consisted of local policemen was also set up. This force was called "the Palestinian Gendarmerie", through the Jews who participated in it called it "The Excellent Police". Its principal function was to deal with riots and unrest."[105]

The Police Act "In 1921 the British passed the Police Act, which was the first law that defined the structure of the Police in Palestine and its functions."[106]

The Israeli Police after the Establishment of the State of Israel

First Steps: "On the establishment of the State of Israel in 1948, a team began planning the Israeli Police Force. It was led by Ezeckial Sahar, who later served as its first Inspector General. It was settled that the army would place 1200 men at the disposal of the Police, in addition to the 700 constables who had served in the Palestine Police during the Mandate. In the Police Act of 1926 (with minor amendments) the procedures of the British Police Force and the names of the ranks were translated into Hebrew. The uniforms, the deployment to police stations, the structure of the stations and the modi operandi were also determined by British Police practice. During the first year, the Israeli Police Force's subordination to the army was severed. The policemen dealt mostly with law enforcement and security, though they were compelled to assist with fortification, immigrant transit camps and absorption."[107]

Reorganization "From 1958 -1960 the Israeli Police Force was reorganized: The division of labor between headquarters and field offices was fixed, as were manpower standards and resources. The Investigations System became a progressive and powerful division, policemen were put on patrol and additional Police Stations were opened."[108]

Responsibility for Internal Security "In 1974 the Israeli Government decided to place the responsibility for internal security on the Israeli Police force. The organizational structure of the Israeli Police Force and its modi operandi had been shaped by the social and political developments that had occurred since the period of the British Mandate."[109] "The historical events brought about the development of a countrywide National Police Force that performs police functions such as maintaining order, fighting crime and serving the public as well as taking responsibility for the internal security of the State. All this in a multi-cultural society characterized by deep conflicts based on religious, ethnic, clannish, political and social differences."[110]

The Structure of the Israeli Police Force and the Nature of its Activities

"Israel has a countrywide national Police Force that is subordinate to the Minister of Internal Security."[111]

The Ministry of Internal Security "The Ministry of Internal Security supervises the Israeli Police Force and the Prison Service. The Ministry's functions are: Formulating internal security policy, the allocation of resources to the different branches and monitoring the use of resources, initiating projects in its areas of responsibility, dealing with calls, complaints and petitions from inside and outside the organization, networking with Government Ministries and other system, research, planning, development and more."[112]

Nature of Activity The Israeli Police Force operates in two principal fields:

Law Enforcement and Public Service

"The work of the Police Force includes the war on crime, enforcing traffic laws, maintaining public order, preventing road accidents and attending to problems pertaining to the quality of life (environmental hazards, conflicts between neighbors etc.)."[113]

Internal Security "Foiling and preventing hostile sabotage attacks within the country. The structure of the Israeli Police Force as a single countrywide entity facilitates the speedy deployment of its forces when they are required. Due to Israel's security situation in recent years, a large array of forces has been formed to deal with matters of internal security. The Border Police (that counts for a third of the Police force) is directed principally to internal security assignments on the borders of the country."[114]

Police Roles The roles of the Israeli Police Force are defined in Clause 3 of the Police Act (new version) 5731 – 1971:

• Crime Prevention
• Crime Investigation and Discovery
• Apprehension of criminals and bringing them to trial
• Surveillance and coordination of road traffic
• Maintaining pubic order and securing life and property
• Safeguarding the security of prisoners and detainees
• Responsibility for internal security

[115]

The Ethical Code of the Israeli Police Force "The purpose of the Israeli Police Force is to enforce the law in the spirit of the Proclamation of Independence, based on the aspiration to improve the quality of life in the State of Israel by serving the public. The code aims to guide the behavior of the policemen towards attaining their goals."[116] These are the Principles of the Code according to which the Israeli Policeman functions:

• Protection and Enforcement of the Law He will enforce the law, prevent and discover violations and maintain public order, while abiding by the law within the framework of his instructions and the authority vested in him.
• Protection of Life and Property He will defend every man, his life and his property with determination and courage.
• Protection of Human Rights He will operate out of protection of individual rights and will behave with courtesy and patience towards all. He will work to increase the public's trust, seeing himself as a servant rather than a master of the public.
• Set a Personal Example of Integrity He will serve as an example in his appearance and behavior at all times and will avoid actions unbefitting his status and role, he will behave according to high moral standards, will maintain his integrity, honesty and credibility, will observe secrecy and accurately report only the whole truth.
• Professionalism and Responsibility He will be prepared to fulfill his role at all times, will exercise practical and professional judgment, will curb force and authority, remain unperturbed in times of danger and will take responsibility for the results of his actions.[117]

Deployment and Organization "The Israeli Police Force is Headed by the Inspector General. The National Headquarters assists the Inspector General in the administration of the districts and the Border Police. In addition to thousands of policemen and Border Police Soldiers the Police Force is reinforced by tens of thousands volunteers who serve in the Civilian Guard."[118]

The National Headquarters

"The National Headquarters is located in Jerusalem. Its role is to assist the Inspector General formulate policy, allocate resources, make plans in coordination with the district offices and the Border Police, control, inspect, develop relations with external agencies, provide professional guidance, promote research and development, provide management services like computerization and public relations."[119]

The National Headquarters has Eight Divisions:

• Policing and Security
• Investigation & The War on Crime
• Intelligence
• Traffic
• Community and Civilian Guard
• Planning and Organization
• Support and Logistics
• Human Resources

[120]

"Various nationwide units operate under the command of the Police Headquarters in the areas of traffic, investigations, etc. Independent units also operate from the Police Headquarters and are subordinate to the Inspector General and the Deputy Inspector General: The Police Comptroller, The Disciplinary Court, the Court of Appeals, the National Inspection and Complaints Unit, etc."[121]

The Police Districts "The Israeli Police Force has six territorial districts: Northern, Central, Tel-Aviv, Jerusalem, Southern and Judea and Samaria and the Border Police (which constitutes the military and professional wing of the Police on the subject of internal security and the war on terror). The underlying principle of the operation of these districts is that of a unified command. The district commanders are responsible for Police operations in their districts: internal security, public order and the war on crime."[122]

"There are three levels of command in a Police District: District, Region and Police Station."

The Roles of the District Headquarters: "Determining Police force's policy in the district, coordination, supervision and control, command and authority, the flow of resources and means to the police units in the district. Similarly, the district plans operations between the regions and the district police stations within the areas under its command."[123]

The Roles of the Regional Headquarters: "The districts are made up of several regions. The regional commander is responsible to the district commander, who is his superior, for fulfilling all the roles of the Police in the region. The regional work is divided between work at Headquarters, including coordination, supervision and control of the stations in his area, networking with external factors and reporting to the district. The other part of the regional work includes operational work with regional units who deal with intelligence, traffic, claims, forensics, the regional detention center and the Special Patrol Unit. There are 19 regions spread out over the country."[124]

The Roles of the Police Stations: "The Police Station is the basic unit that provides most of the police services to the citizen. There are 54 Stations spread out nationwide. The functions of the Stations include all the patrol and internal security assignments in the judicial area of the Station, Investigations, data collection and intelligence information regarding offences committed in its area. Representatives from the Station work to create partnerships with organizations and institutions in the local authorities and community and work together with them to recruit the inhabitants to join in the war on crime and improve the quality of life in the area. Similarly, the Police Station (through its volunteer centers) recruits volunteers to the civilian guard and integrates them in almost all its fields of activity. Some of the Police Stations have Police Points manned by constables who are responsible for areas that are urban, agricultural or have a specific purpose like a Marina or a Pedestrian Mall."[125]

Community Policing Center "It was decided to decentralize the Police services with the intention of improving them by forming Community Policing Centers. The Centers are mostly located in distant neighborhoods, with concentrations of Arab populations, immigrants, in rural areas and in tourist areas and beaches. In most cases the Community Policing Center operates out of a hub for activating volunteers or close to it and is manned by a policeman on the permanent force. This policeman together with volunteers in the Civilian Guard and other Community and Municipal organizations, identify the requirements of the population and its problems and create a comprehensive neighborhood vigilance network to combat crime."[126]

Policing and Security

Operations "The Forces are charged with a wide array of operations that include patrolling and maintaining public order, preventing offences against life and property, protecting internal security and guarding prisoners and detainees. Nationwide operational units like the Sappers, helicopter crews, negotiators and the vehicle theft trackers are numbered among this array of policing and security entities."[127]

Enforcement "The Police Force is also required to enforce Court decrees of various kinds by virtue of its responsibility to uphold and enforce the law of the land. Among these duties are collection of debts and fines, serving orders to appear in Court for child support or criminal offences."[128]

Crime Rates and Public Opinion[edit]

Illicit Drugs:There is a huge drug issue concerning ecstasy, cocaine, and heroin abuse. Drugs arrive into Israel from Lebanon and very often from Jordan.https://www.cia.gov/library/publications/the-world-factbook/geos/is.html

There are many Foreign Terrorist Organizations (FTO) operating in Israel, the West Bank, and Gaza. A couple of much known FTOs are Al-Aqsa Martyrs Brigade, Kahane Chai (Kach), and HAMAS (the Islamic Resistance Movement). It is illegal for any American citizen or a person who lives in the United States to provide any material, any support or resources to a designated FTO. [129]

“The crime rate is moderate in Israel, the West Bank, and Gaza. Break-ins of parked vehicles are common at beach areas, the Dead Sea, and national parks (especially Caesarea National Park). Car break-ins and purse snatchings in cities and in cemeteries occur regularly throughout Israel. U.S. citizens should not leave their valuables (including passports) unattended, in parked vehicles or unsecured in hotels.”[130]

INFORMATION FOR VICTIMS OF CRIME: “If you are the victim of a crime abroad, you should contact the local police and the nearest U.S. embassy or consulate. This includes the loss or theft of a U.S. passport. The embassy/consulate staff can, for example, help you find appropriate medical care, contact family members or friends and explain how funds may be transferred. Although the investigation and prosecution of the crime are solely the responsibility of local authorities, consular officers can help you to understand the local criminal justice process and to find an attorney if needed. The Government of Israel provides assistance to victims of terrorist acts. The emergency line in Israel is 100." [131]

CRIMINAL PENALTIES: “Persons violating Israeli or PA laws, even unknowingly, may be expelled, arrested or imprisoned. Penalties for possession, use, or trafficking in illegal drugs in Israel and PA administered areas are severe, and convicted offenders can expect long jail sentences and heavy fines.”[132]

SPECIAL CIRCUMSTANCES: “Video cameras and other electronic items must be declared upon entry to Israel. They are sometimes seized by Israeli customs and security officials and may be returned either damaged and/or after a lengthy delay. It is advisable to contact the Embassy of Israel in Washington, D.C. or one of Israel’s consulates in the United States for specific information regarding customs requirements. Definitive information on customs requirements for the PA is not available.”[133]

Arrests and Detentions: "U.S. citizens arrested by the Israeli National Police (INP) and charged with crimes are entitled to legal representation provided by the Israeli Government and to consular notification and visitation. In some cases, there are significant delays between the time of arrest and the time when the INP notifies the Embassy or Consulate General and grants consular access. This is particularly true in the arrest of dual American-Israeli and American-Palestinian citizens. The notification procedure may be expedited if the arrested American shows a U.S. passport to the police and asks the police or prison authority to contact the U.S. Embassy or Consulate General. When access to a detained American citizen is delayed or denied, the U.S. Government formally protests the lack of consular access to the Israeli Government.”[134]

“U.S. citizens arrested by Israeli security forces for security offenses, and U.S. citizens arrested by Israeli authorities in the West Bank or Gaza for criminal or security offenses, may be prevented from communicating with lawyers, family members, or consular officers for lengthy periods.”[135]

“The U.S. Consulate General and the Embassy sometimes are not notified of such arrests, or are not notified in a timely manner. Consular access to the arrested individual is frequently delayed. On occasion, arrestees have been subject to mistreatment during interrogation and pressured to sign statements in Hebrew that have not been translated. Under local law arrestees may be detained for up to six months at a time without charges. Youths over the age of 14 have been detained and tried as adults. The U.S. Government may formally protest any report of mistreatment to the relevant authorities.”[136]

“U.S. citizens arrested by PA security forces in the West Bank for crimes are entitled to legal representation and consular notification and access. PA security forces normally notify the Consulate General of non-security-related arrests for criminal offenses, but not always within a timely manner, and consular access is normally granted within four days. This procedure may be expedited if the arrested American shows a U.S. passport to the police, or asks the police to contact the U.S. Consulate General.”[137]

“Palestinian-American dual citizens living in the West Bank can be detained or arrested by the IDF. In such instances, the GOI may not recognize the American citizenship and will instead consider the arrested person a Palestinian. In such cases the U.S. Consulate General may not be notified.” “Dual Palestinian-American citizens arrested by PA security forces in the West Bank for security offenses may be prevented from communicating with lawyers, family members, or consular officers for lengthy periods. In addition, they may be held in custody for protracted periods without formal charges or, before being brought before a judge for an arrest extension. The PA often does not notify the U.S. Consulate General of such arrests in a timely manner, and consular access to arrestees is occasionally delayed. Since Hamas seized control of the Gaza Strip in June 2007, its Executive Forces (EF) have dominated security matters there. The U.S. Government has no contact with the EF.”[138]

Rights[edit]

Family Law[edit]

  • DIVORCE AND MARRIAGE

Family Courts Deal With Dissolution of Marriage

There are many courts that have jurisdiction to deal with civil divorce in Israel. Civil divorce, accurately called "Dissolution of Marriage" "can be dealt with either by a family court, or a religious court, according to the Jurisdiction in the Matter of Dissolution of Marriage (Special Cases & International Jurisdiction ) Act of 1969, which was amended in 2005. Secondly, the family court's deputy-president decides whether jurisdiction to dissolve the marriage lies with the family court or a religious court."[139] Also, in 2005, the Minister if Justice gave an order stating that the family courts in the following places have legal jurisdiction to deal with the dissolution of marriage. These places include: Eilat, Ashdod , Beersheva, Hadera, Haifa, Tiberias, Jerusalem, Kfar Saba, Nazareth, the Haifa Bay, Kiryat Gat, Kiryat Shmona, Rishon Le Zion and Ramat Gan (Tel Aviv & Central District Family Court).[140]

The legislation that covers civil divorce in Israel is the "1969 Jurisdiction in Dissolution of Marriage (Special Cases & International Jurisdiction ), which was streamlined in 2005."[141] "Under Israeli law, the only ground for civil divorce is mutual consent, but in certain situations the laws of the country where the marriage was performed will apply, and the divorce case can be decided in Israel, based on these."[142]

Civil marriage does not exist in Israel at present. The options lie abroad. These marriages are recognized by the Ministry of the Interior and can be registered there, so that the word “married” appears on your identity card, if you take your marriage certificate there for registration. In recent years there have been many attempts to change the law and introduce civil marriage in Israel, but so far nothing concrete has resulted."[143]

"Even though you choose not to have a Jewish religious wedding, if you want to be legally entitled to marry again according to Israeli – and in your case, Jewish religious law – you will need to get a ‘get’ from the rabbinical court. This is to erase any doubt about ‘dedication’ (‘kiddushin’). Otherwise, if you do not have a ‘get’ and you have a child with another Jew, then, under Jewish law that child would likely to be regarded as a bastard (‘Mamzer’), if , in Jewish law, you had not obtained a ‘get’ , and were regarded as ‘married’ by the rabbinical court ( because you had been ‘dedicated’ by your husband). Furthermore, there is the need to formally end your marriage, so as to avoid complications of bigamy, should you wish to marry in the future."[144]

Without two witnesses with full legal capacity under Jewish law the dedication and marriage ceremony is void ab initio (from the beginning). Their presence is an essential part of the ceremony and gives it legal value. Without it the marriage is not legally valid."[145]

The validity of the marriage depends on the legal capacity of the parties to marry, rather than their sexual tendencies, and if the ceremony was carried out properly according to Jewish law, then the union will be legally valid."[146]

Lesbian or homosexual marriage does not exist in Israel. It is possible for two Israeli lesbians or homosexuals to get married abroad, where the relevant foreign law permits marriage between parties of the same sex. Furthermore, upon their return to Israel, this marriage can now be recognized , administratively, in Israel afterwards , following a November 2006 Israeli Supreme Court of Justice 6: 1 majority ruling. This ordered the Ministry of Interior to register such foreign marriages, providing there is documentary proof that the ceremony was conducted and recognized according to law, where it took place. In any case, a single sex couple can make a family life agreement in Israel and have it authorized at a family court."[147]

"In principle a prospective bride must be 17, according to the 1950 Marriage Age Act . However, there are two exceptions whereby the court has discretion to grant permission for a prospective bride below the age of 17 to marry. The first is where she has reached 16 and the court is satisfied that there are special reasons justifying her marrying before she reaches 17. The second reason is she is carrying the child of the man she wants to marry, or has already given birth to his child."[148]

"Prospective Moslem brides are subject to the civil Marriage Age Law of 1950. All females – including Moslems – must be at least 17 . Permission can be given for underage marriage by the family court according to the terms of the act which gives discretion where the female is underage as explained above." "Regarding prospective Moslem bridegrooms, however, personal status law applies – The Ottoman Law of Family Rights 1917 – which requires males to be at least 18. Underage marriages are not invalidated but there are penalties for a non-compliant husband and those arranging and officiating the ceremony."[149]

"A young girl under the age of 17 can apply to the family court for permission to marry even if her parents object. The 1950 Marriage Age Act gives the court discretion to grant permission, with the main factor in its decision-making being the minor’s good. Within the framework of testing this the court will examine her emotional maturity and the support she is likely to get from family and other sources."[150]

A Cohen is forbidden from marrying a convert to Judaism or a Jewish woman who has divorced her husband. As an alternative to Jewish marriage, the couple could marry in a civil ceremony abroad, or live together as cohabitees, preferably with a court authorized "family life" agreement."[151]

A Jewish couple whom have divorced have the right to remarry one another if they wish to. "Providing there is no prohibition in Jewish law preventing this."[152]

  • ADOPTION

When it comes down to the issue of adopting children, "the family court has jurisdiction , according to both the 1981 Adoption Law and the Family Courts Act of 1995. Appeals on adoption rulings made by the family court are heard by the District Court, and the Supreme Court hears appeals on District Court rulings." [153]

The 1981 Adoption Act regulates the whole adoption process and states specifically: “There is no need for the parents to know who the adopter is.”" [154]

Once a parent has consented to adoption, or the court has declared the child adoptable, and no guardian has been appointed for the minor, the rights, obligations and powers of that parent are vested in the welfare officer, until a further decision by the court."[155]

There is a minimum period of six months where the adopted child has to live with adoptive parents before the court finally declares the adoption order.[156]

A couple wishing to adopt a particular child may have to wait "a maximum of two years, from the time the child is declared "adoptable" by court. The 1981 Adoption Act says that the court is entitled to give an intermediate order placing the child with them, in which the rights and obligations of the couple towards the minor they wish to adopt, are set out, but the maximum “life” of the order is two years."[157]

The Adoption Act 1981 does provide for adoption, even where a parent does not consent. One of the grounds is where a child under the age of six is held outside the parental home for six months and the parent refuses to allow him/her home, without justification. If the Attorney General, or his representative, asks the court to declare the child “adoptable”, the family court has discretion to grant such an order even without the parent’s consent."[158]

A single mother who wishes to put her child up for adoption can consent to this. Regarding the unmarried biological father, the family court has discretion and can declare the child “adoptable” even without his consent, if he does not live with the mother and refuses without any reasonable cause to receive the child in his home."[159]

"An adoption order will not be granted under the Adoption Law unless both biological parents agree. In exceptional circumstances the family court will declare a child “adoptable” even without this consent."[160] If a teenager who has just given birth wants to put her child up for adoption the first thing she has to do is give the necessary written consent. The child then "will be placed in a temporary foster home while the Attorney General applies for an order declaring the child “adoptable”. The biological father can start proceedings to get the baby handed over to him and the court will have to consider whether the exceptional circumstances apply. It would normally appoint a professional to assess the biological father and his situation."[161] "The exceptional circumstances permitting the court to declare the child adoptable even if one biological parent refuses to consent to adoption is where (a) the parent is incapable of looking after the child properly due to his behaviour or situation and there is no chance of this improving with financial help and treatment and (b) refusal to consent is because of immoral reasons or an illegal purpose."[162]

One may wonder, how secret are the adoption proceeding. "The 1981 Adoption Act makes specific mention of the confidentiality of proceedings. It states that hearings are to be held behind closed doors, although the court can hold them in public. It can allow a person or a specific group of people to attend all or part of the hearing."[163]

When the family court grants an order declaring the child "adoptable" it can give specific instructions for the results of the adoption to be reduced so it is "open", rather than "closed" ,for the child's welfare. These can be in force until an adoption order is granted in relation to a suitable adoptive parent becomes final."[164]

"Later, when the court actually deals with an application for adoption by a potential adoptive parent , it is entitled to review the question of keeping it "open" . It can cancel , reduce or extend the "open" nature of the adoption, in keeping with the child's welfare, when it grants the adoption order. However, it must give the Attorney General's representative, any lawyer appointed to represent the child in the proceedings and the biological parent/relative the opportunity to express their opinion."[165]

"For example, in an adoption case heard by Jerusalem Family Court a minor girl was first declared "adoptable" in 2002, and the adoption process kept "open" in that contact was to be maintained with her biological mother and maternal grandmother. Instructions were given about the frequency and the nature of the contact, and how the authorities' should report back to court about progress regarding the suitability of a potential adoptive parent. Later on, in 2004, the court gave further instructions on the subject, linking them to the possibility of the potential adoptive parent filing an application to adopt."[166]

The court will always be the one to decide whether to allow a child who is going to be adopted to remain in contact with his/her biological parents. "The determining factor will be ‘the child’s good”. The Supreme Court has held that the decision whether continued contact is in the ‘child’s good’ will be made after the following have been assessed: (a) the minor’s needs and wishes (b) the minor’s existing relationship with his/her biological parents and (c) their ability to overcome ‘blood ties’ and allow the child’s rehabilitation with the adoptive family. Where all contact is ended the adoption is referred to as ‘closed’. Where some contact is retained it is referred to as ‘open’."[167]

A child who was adopted as a baby or young child and has no recollection of who his biological parents were has to wait until he reaches the age of 18 to trace them. The 1981 Adoption Act regulates access to adoption records and limits this to a closed group of people. An adopted child does have the right to look up his adoption record but not while he is a minor (under the age of 18)."[168]

The Adoption Law of 1981 only recognizes couples as being eligible to adopt if they are heterosexual and married . An individual cohabiting with the biological parent of the minor child he/she wishes to adopt – but who is not officially married to him/her cannot do so. These points were emphasized in a case heard by Jerusalem family court in January 2000 when it rejected the application of a woman to adopt the biological child of the widowed man she cohabited with. Only if she married the man she lived with would she be eligible to adopt his child, it held."[169]

"Where the adoption is of a child in Israel, and not a 'foreign adoption', the Adoption Act of 1981 States that the person wishing to adopt must be at least 18 years older than the child he/she wishes to adopt. Where the potential adoptive parent is the partner of the child's parent, or the child was adopted by the other partner beforehand, then there is no age restriction."[170]

"In January 2005 the Supreme Court set new precedent and interpreted the Adoption Law as not excluding Lesbians from being eligible to adopt on grounds of their sexual orientation. Thus, if in the particular circumstances of the case, the adoption is in the minor's interests, an adoption order will now not be refused because the potential adopter is Lesbian and in a single-sex relationship. The appeal judgment, came at the end of a long, legal battle."[171]

"The successful appeal was against a judgment by the District Court in 1999 refusing to accept the women's appeal against the family court's rejection of the adoption plea in 1997. In its judgment, the Supreme Court allowed the applicants, two lesbians, who had a stable single-sexed family relationship , with each acting as a 'second mother' to the other's child/ren , to adopt each other's offspring. The professional's report ordered by court had stated that each applicant was the next most important significant figure in the minor/s' lives after their biological mother, in the absence of a father-figure."[172]

An adopted child is entitled to inherit from his/hers adoptive parents just like they would be able to if it was from their biological parents. "An adopted child has just the same rights as his/her adoptive parents’ natural child."[173]

"The Adoption Act of 1981 lays down criteria regarding the difference in age between the prospective adopter and the prospective adoptee in inter-country adoption. The prospective adopter cannot be more than 48 years older than the child at the time the application is made. If a couple wish to adopt, the age difference of the younger one must be less." [174]


The Israeli adoption law does not only deal with children from Israel. "It also deals with adopting a child from overseas, in that it restricts and regulates this in a procedure called ' Inter-Country Adoption' .The Adoption Act 0f 1981 was amended to deal with the problem of unregulated private adoption of children from overseas, some of whom were even 'stolen' or 'abducted' from their biological parents . Private adoption of children from overseas is prohibited, and a child living abroad can only be adopted via licensed agencies operating in Israel, and in specified countries overseas."[175]

Some may wonder, can one adopt an adult under Israeli law. Believe it or not, YES! But it is an exception in most cases. "As a general rule only a person under 18 can be adopted. However, the 1981 Adoption Law does allow for the adoption of adults in exceptional circumstances, the Supreme Court held a few years ago, if it is in the adoptee’s good and does not harm a defendable interest." [176]

"An example would be where adoption would give legal expression to an existing relationship of a parent-child nature. This could occur, for example, where a young child from a woman’s first marriage grows up with her mother’s second husband playing a fatherly role. Her absentee biological father refuses to co-operate with the adoption when she is little but after the mother’s death, when the daughter is a young adult, adoption is an option."[177]

Also, if a single sex couple wants to apply for adoption after many years, they can. "In March 2009 Tel Aviv Family Court granted an adoption order concerning a 30 year old man, who was informally 'adopted' by a couple, fourteen years ago, when he was 16. The court said that the report submitted by the welfare officer described very positive parent-child relationship between the adoptee and the applicants, a homosexual couple, who had taken him in during a crisis in his teens connected with his realization of his own sexual inclination."[178]

Social Inequality[edit]

"Inequality in Israel takes many forms. Some of the major fault-lines that divide Israeli society, creating relatively privileged and deprived groups, are Western Jews (Ashkenazim) versus Eastern Jews (Mizrahim); men versus women; Israel-born Jews (Sabar) versus new immigrants (Olim); Orthodox versus secular Jews; rural versus urban dwellers; rich versus poor; left-wing versus right-wing supporters; and gay versus straight people. This report focuses on inequalities between Jewish citizens of Israel—the majority—and Palestinian Arab citizens of Israel, a national, non-immigrant minority living in its historical homeland."[179]


"Israel lacks a written constitution or a Basic Law that constitutionally guarantees the right to equality and prohibits discrimination, either direct or indirect. While several ordinary statutes provide protection for the right of equality for women and for people with disabilities, no statute relates to the right to equality for the Arab minority in particular. The Basic Law: Human Dignity and Liberty, which is considered a mini-bill of rights by Israeli legal scholars, does not enumerate a right to equality; on the contrary, this Basic Law emphasizes the character of the state as a Jewish state."[180] "In July 2010, the United Nations Human Rights Committee (which monitors the International Covenant on Civil and Political Rights, or ICCPR) expressed its concern that Israel’s Basic Law: Human Dignity and Liberty, “does not contain a general provision for equality and non-discrimination,” and called on Israel to “amend its Basic Laws and other legislation to include the principle of nondiscrimination and ensure that allegations of discrimination brought before its domestic courts are promptly addressed and implemented."[181]

"These discriminatory laws are found among the Basic Laws and the sources of Israeli law. They limit the full gamut of rights of the Palestinian minority in Israel, from citizenship rights to the right to political participation, land and housing rights, education rights, cultural and language rights, religious rights, and due process rights during detention on security charges. The Jewish character of the state is evident in numerous Israeli laws. The most important immigration laws—The Law of Return (1950), and The Citizenship The Inequality Report 15 Law (1952)—allow Jews to immigrate freely to Israel and to gain citizenship, but exclude Arabs who were forced to flee their homes in 1947-1952 and 1967."[182]

Human Rights[edit]

"Israeli forces committed war crimes and other serious breaches of international law in the Gaza Strip during a 22-day military offensive code-named Operation “Cast Lead” that ended on 18 January. Among other things, they carried out indiscriminate and disproportionate attacks against civilians, targeted and killed medical staff, used Palestinian civilians as “human shields”, and indiscriminately fired white phosphorus over densely populated residential areas."[183]

"More than 1,380 Palestinians, including over 330 children and hundreds of other civilians, were killed. Much of Gaza was razed to the ground, leaving vital infrastructure destroyed, the economy in ruins and thousands of Palestinians homeless." [184]

"Israeli forces continued to impose severe restrictions on the movement of Palestinians in the Occupied Palestinian Territories (OPT) throughout 2009, hampering access to essential services and land. The restrictions included a military blockade of the Gaza Strip, which effectively imprisoned the 1.5 million residents and resulted in a humanitarian crisis. Despite this, Israel often stopped international aid and humanitarian assistance from entering Gaza. Permission to leave Gaza to receive medical treatment was denied or delayed for hundreds of seriously ill Palestinians and at least 28 individuals died while waiting for permission to travel."[185]

"Israeli forces continued to forcibly evict Palestinians, demolish their homes and expropriate their land in the occupied West Bank, including East Jerusalem, while allowing Israeli settlements to expand on illegally confiscated Palestinian land. Throughout the year, Israeli forces used excessive and, at times, lethal force against Palestinian civilians. Allegations of ill-treatment against Palestinian detainees continued and were rarely investigated. Hundreds were administratively detained without charge; others were serving sentences imposed after unfair military trials. Israeli soldiers and settlers who committed serious human rights abuses against Palestinians enjoyed virtual impunity."[186]

BACKGROUND

"Israeli parliamentary elections in February saw a growth in support for right-wing parties and the formation of a coalition government that included the Labour party, the right-wing Likud party and the ultra-right Yisrael Beitenu. The US government increased calls for Israel to stop settlement building as an initial step in reviving the peace process, but its calls were not heeded."[187]

OPERATION ‘CAST LEAD’

"The 22-day Israeli military offensive on Gaza, launched without warning, had the stated aim of ending rocket attacks into Israel by armed factions affiliated to Hamas and other Palestinian groups. The offensive killed more than 1,380 Palestinians and injured around 5,000, many of them seriously. More than 1,800 of the injured were children. Thousands of civilian homes, businesses and public buildings were destroyed. Entire neighbourhoods were flattened."[188]

"The electricity, water and sewage systems were severely damaged, as was other vital infrastructure. Large swathes of agricultural land and many industrial and commercial properties were destroyed. Much of the destruction was wanton and deliberate, and could not be justified on grounds of military necessity."[189]

"Thirteen Israelis were killed during the fighting, including three civilians killed by rockets and mortars fired by Palestinian armed groups into southern Israel (see Palestinian Authority entry). Before and during Operation “Cast Lead” the Israeli army refused to allow into Gaza independent observers, journalists, human rights monitors and humanitarian workers, effectively cutting off Gaza from the outside world. The authorities also refused to co-operate with an investigation by the UN Human Rights Council (HRC)."[190]

"The HRC report, issued in September and known as the Goldstone report, accused Israel and Hamas of war crimes and possible crimes against humanity in Gaza and southern Israel. It recommended that those responsible for war crimes be brought to justice. The Israeli authorities did not establish any independent or impartial investigation into the conduct of its forces during Operation “Cast Lead”, although there were a number of internal investigations.[191]

"Hundreds of civilians were killed by Israeli attacks using long-range high-precision munitions fired from combat aircraft, helicopters and drones, or from tanks stationed several kilometres from their target. Victims were not caught in the crossfire or when shielding militants, but killed in their homes while sleeping, carrying out daily tasks or playing. Some civilians, including children, were shot at close range when posing no threat to the lives of Israeli soldiers. Paramedics and ambulances were repeatedly attacked while rescuing the wounded, leading to several deaths."[192]

"Scores of civilians were killed and injured by less precise weapons, such as artillery shells and mortars, and flechette tank shells. White phosphorus was repeatedly fired indiscriminately over densely populated residential areas, killing and wounding civilians and destroying civilian property. Many of these attacks violated international law as they were disproportionate and indiscriminate; directly targeted civilians and civilian objects, including medical personnel and vehicles; failed to take all feasible precautions to minimize the risks to civilians; and failed to allow timely access to and passage of medical and relief personnel and vehicles."[193]

"On 4 January, Sa’adallah Matar Abu Halima and four of his children were killed in a white phosphorus attack on their home in the Sayafa area in north-west Gaza. His wife Sabah was seriously burned and told Amnesty International that she had watched her baby girl Shahed melt in her arms. Soon after the attack Israeli soldiers shot dead at close range cousins Matar and Muhammad Abu Halima as they tried to take their burned relatives to hospital."[194]

"During the night of 6 January, 22 members of the al-Daya family, most of them women and children, were killed when an Israeli F-16 aircraft bombed their home in the al-Zaytoun district of Gaza City."[195]

"Israeli forces attacked hospitals, medical staff and ambulances as well as humanitarian facilities, including UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) buildings. At least 15 of the 27 hospitals in Gaza were damaged, some extensively; around 30 ambulances were hit and 16 health workers were killed. Amnesty International found no evidence that Hamas or armed militants used hospitals as hiding places or to carry out attacks, and the Israeli authorities did not provide evidence to substantiate such allegations."[196]

"Three paramedics – Anas Fadhel Na’im, Yaser Kamal Shbeir and Raf’at Abd al-‘Al – were killed on 4 January in Gaza City by an Israeli missile as they walked towards two wounded men. A 12-year-old boy, Omar Ahmad al-Barade’e, who was showing them the way, was also killed. At about 6am on 17 January a white phosphorus artillery shell exploded in the UNRWA primary school in Beit Lahia, where more than 1,500 people were sheltering. Two children – Muhammad al-Ashqar and his brother Bilal – aged five and seven respectively, were killed. More than a dozen other civilians sheltering in the school were injured."[197]

"On several occasions Israeli soldiers used Palestinian civilians, including children, as “human shields” during military operations, or forced them to carry out dangerous tasks. Israeli soldiers also launched attacks from near inhabited houses. For two days from 5 January, Israeli forces held Yousef Abu ‘Ida, his wife Leila and their nine children as “human shields” in their home in Hay al-Salam, east of Jabalia, while they used the house as a military position. They then forced the family out and destroyed the house."[198]

"Israeli forces deliberately blocked and otherwise impeded emergency relief and humanitarian assistance. They also attacked aid convoys and distribution centres, and medical personnel, prompting UNRWA and the ICRC to cut back on their operations in Gaza during the offensive."[199]

"Several members of the al-Sammouni family bled to death in the days following an attack on 5 January on their home in the al-Zaytoun neighbourhood of Gaza City because the Israeli army did not allow ambulances or anyone else to rescue them. Children lay for three days without food or water next to the bodies of their dead relatives. In all, 29 members of the al-Sammouni family perished."[200]

GAZA BLOCKADE – HUMANITARIAN CRISIS

"The continuing Israeli military blockade of Gaza, in force since June 2007, deepened the ongoing humanitarian crisis. Mass unemployment, extreme poverty, food insecurity and food price rises caused by shortages left four in five Gazans dependent on humanitarian aid. The scope of the blockade and statements made by Israeli officials about its purpose showed that it was being imposed as a form of collective punishment of Gazans, a flagrant violation of international law."[201]

"Operation “Cast Lead” pushed the crisis to catastrophic levels. After it concluded, the blockade hampered or prevented reconstruction efforts. As a result, there was a further deterioration of water and sanitation services; more power cuts, causing severe problems in the summer heat and for public and health institutions; greater overcrowding in schools; more challenges for an already overstretched health system struggling with damaged facilities and higher demand; and little or no chance of economic recovery."[202]

"Israel continued to deny farmers access to their land within 500m of the Gaza-Israel border, and to ban fishing further than three nautical miles from the shore. Among those trapped in Gaza were people with serious illnesses who needed medical care outside Gaza, and students and workers needing to travel to take up university places or jobs in the West Bank or abroad."[203]

"Samir al-Nadim died on 1 November after his exit from Gaza for a heart operation was delayed by 22 days. By the time the Israeli authorities allowed him to leave on 29 October, he was unconscious and on a respirator. He died of heart failure in a hospital in Nablus in the West Bank."[204]

RESTRICTIONS IN THE WEST BANK

"Israel’s 700km fence/wall in the West Bank, which separates many Palestinians from their land, jobs and relatives, combined with long curfews, around 600 Israeli checkpoints, roadblocks and other closure obstacles, continued to disrupt the ability of Palestinians to access basic services, including educational and health facilities."[205]

RIGHT TO WATER

"Israel continued to deny Palestinians in the OPT fair access to adequate, safe water supplies, hindering social and economic development and posing threats to health, in violation of its responsibilities as the occupying power. Palestinian water consumption barely reached 70 litres a day per person – well below the WHO’s recommended daily minimum of 100 litres. Israeli daily per capita consumption was four times higher. The Israeli army repeatedly destroyed rainwater harvesting cisterns used by Palestinians in the West Bank on the grounds that they had been built without permission."[206]

FORCED EVICTIONS

"Israeli forces forcibly evicted Palestinians and demolished their homes, particularly in East Jerusalem, on the grounds that the buildings lacked permits. Such permits are systematically denied to Palestinians. Simultaneously, Israeli settlements were allowed to expand on illegally confiscated Palestinian land. The Bedouin population of the Negev was also targeted for forced evictions."[207]

EXCESSIVE USE OF FORCE

"Israeli forces used excessive force against Palestinian civilians, causing many injuries and some deaths. The security forces used tear gas, rubber-coated metal bullets and live ammunition, often when there was no serious threat to themselves or to others."[208]

"On 17 April, Bassem Abu Rahmeh was hit by a high-velocity Israeli tear gas canister, causing internal bleeding that quickly killed him. He was taking part in the weekly protest in Bil’in village against the security fence/wall that cuts off Bil’in from much of its agricultural land. Video footage showed that Bassem Abu Rahmeh was unarmed and posing no threat. The Israeli military said it was investigating his death."[209]

MILITARY JUSTICE SYSTEM

"The number of Palestinians held in Israeli prisons without charge or trial decreased from 564 in January to 278 in December. Hamdi al-Ta’mari, a Palestinian student arrested on 18 December 2008 when he was 16 years old, continued to be administratively detained without charge in Ofer Prison near Ramallah in the West Bank until his release on 14 December. He was arrested by Israeli soldiers at gunpoint at his home in Bethlehem and, according to his family, was kicked, beaten and otherwise abused during arrest."[210]

there were many unfair trails. "Palestinians from the OPT, including juveniles, continued to be interrogated without a lawyer present and to be tried in military rather than civil courts, where they suffered other violations to their right to fair trial."[211]

"Around 900 Palestinian prisoners continued to be denied family visits, some for a third year, because Gazans have not been allowed to travel into Israel since the blockade was imposed."[212]

TORTURE AND OTHER ILL-TREATMENT

"Torture and other ill-treatment of Palestinians by the General Security Service (GSS) continued to be reported. Methods allegedly used included beatings, sleep deprivation and prolonged periods in stress positions. Israeli domestic law retains “necessity” as a possible justification for torture."[213]

IMPUNITY

"Impunity remained the norm for Israeli soldiers, police and other security forces, as well as Israeli settlers, who committed serious human rights abuses against Palestinians, including unlawful killings. Violence by settlers against Palestinians included beatings, stone throwing and damaging their crops and homes. In rare cases where Israeli security personnel were convicted, the punishments were extremely lenient."[214]

"In June, the State Attorney’s Office withdrew an indictment against Ze’ev Braude, a resident of Kiryat Arba settlement in Hebron, even though he had been filmed shooting and seriously wounding two Palestinians, Hosni Matriya and his 67-year-old father Abed al-Hai, on 4 December 2008."[215]

"At least six Israeli conscientious objectors were imprisoned during 2009 for refusing to serve in the Israeli army because they opposed the military occupation of the Palestinian Territories or the actions of the army in Gaza. There was increasing harassment of Israeli NGOs supporting conscientious objectors. On 29 October, Or Ben David was given her first prison sentence of 20 days after she refused to serve in the army. She was back in prison at the end of the year after receiving two further sentences."[216]

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