On April 2, the Israeli government decided to impose an almost total closure on the Ultra-Orthodox city of Bnei Brak, because of the coronavirus, with extreme restrictions not applied on other parts of the state. The restrictions include prohibiting the entering and exiting of the city, which is home to 185,000 people, except for limited urgent needs after getting a written approval, like medical treatment not available in its boundaries.
The closure imposed on city of Bnei Brak isn’t unique in the worldwide response to the coronavirus, and also not even close to the limitations on freedom of movement and blockades that Palestinians living in the West Bank or the Gaza are experiencing on a daily base. What is interesting in the story of Bnei Brak, is how easily the Israeli High Court of Justice (Bagatz) approved its closure, despite the belief in many western capitals that Bagatz is a reliable institution that could be trusted to keep the Israeli government in check.
The aerial distance between Bnei Brak and Tel Aviv is only six kilometers, but these are two different planets. While Tel Aviv is a rich, secular and cosmopolitan city, Bnei Brak is an ultra-Orthodox city whose population is among the densest and poorest in the State of Israel.
Since the beginning of the Corona crisis, there has been great concern about the rapid spread of the virus in ultra-Orthodox cities in Israel, due to the high density of its population as well as the Ultra-Orthodox public tendency to be disconnected from the internet and the usual media channels where most other citizens keep updated with the Ministry of Health’s guidelines. For political reasons, Netanyahu and ultra-Orthodox health minister Yaakov Litzman abstained from enforcing the Ministry of Health’s directives in Ultra-Orthodox cities for a number of weeks, due to the strong opposition of rabbis to cease the ongoing activities of the yeshivas and synagogues.
In light of growing criticism over the past two weeks over Netanyahu’s management of the Corona crisis, the allegations of lack of transparency and improper decision-making processes, Netanyahu’s mixing of personal political interests, and the exposure of a host of serious failures (especially the severe shortage of test kits), a scapegoat was needed. Netanyahu, who for years has been dependent on a coalition with Ultra-Orthodox parties, released the brunt of wild incitement against the entire ultra-Orthodox public. Even though there is no comprehensive and reliable information about the number of Israeli patients and their segmentation among the population, as no general population tests are conducted, a relatively high number of patients can be found in Bnei Brak.
Against this backdrop, an almost total closure was imposed on the city of Bnei Brak, and the Ministry of Health and Netanyahu did not even bother to consult with the Municipality of Bnei Brak prior to taking the decision. They did not attempt to find out the city’s position on the consequences of the closure on the residents and whether it can bear it.
Four days after the closure, four residents of the city of Bnei Brak filed an urgent petition against the decision to the Israeli High Court of Justice (Bagatz). The petition made claims that we, lawyers who represent Palestinians from the occupied territories, routinely argue in that Israeli courts, including in Bagatz. Among other things, the petitioners argued that the closure makes it difficult for Bnei Brak residents to obtain food, medicine and medical care, and that their basic human rights to work, liberty and dignity which are recognized by international law and international conventions are severely impaired especially given this poor and weakened public (In Israel people are still able to go to work, with some limitations like about the numbers of workers).
It was also stated that this is a form of “collective punishment” as part of the wave of incitement against the Ultra-Orthodox community, and that the closure is causing humiliation of the Ultra-Orthodox residents who are required to leave the city to purchase food and medicine and are being treated as threat. In its response to Bagatz, the state claimed that the decision is based on purely professional considerations by health officials, given the extent of the infection in the city and the fear that its residents’ behavior might lead to losing control over the spread of the virus across the entire state.
On the night of April 7, a ruling was issued by Bagatz Judges Yitzhak Amit, Anat Wilner and Joseph Elron, which is a testament to the weakness of Bagatz as an institution that is supposed to be the protector of Israeli democracy, or rather its fig leaf, depending who you ask.
After detailing the number of patients and the deceased in the world and in Israel, the judges opened with a sort of disclaimer about the basic principles of the democratic regime in a state of emergency:
“In the legal aspect, the epidemic leads us to an unchartered territory, in legal and constitutional avenues which had not been envisioned or foreseen by the doomsayer. Fundamental legal rights like the right to privacy, property, freedom of occupation and freedom of movement within Israel, stand still in light of terms such as closure, envelopement, roadblocks, phone tracking by the Shin Bet, social distancing and more. All these pass us by like a dystopian dream in a democratic state where civil liberties are at the core of its existence. In routine days, such measures would have been rejected as being clearly illegal, but these days are not ordinary days and because the time requires it, there is no escape from striking the public even though it has not sinned and is unworthy of it.”
Hypocrisy cries out to high heaven. For 53 years the Bagatz judges have been approving the Israeli dystopia in the Occupied Palestinian Territories, as well as the systematic violations of human and civil rights that is mentioned in this checklist both within the Occupied Territories and towards Palestinian residents and citizens of Israel. The Bagatz judges have also systematically approved administrative arrests, torture, and the legality of denying the right to life of Palestinians who were not involved in the armed struggle or who merely exercised their right to protest, and were shot to death with various types of weapons by the Israeli security forces.
The judges added that “this is the first time in the history of The State of Israel, where closure of a city within the Green Line is implemented.”
This is an interesting remark given that the Palestinian areas in East Jerusalem, which were annexed contrary to international law into the sovereign territory of the State of Israel, are subject to routine and repeated closures (in recent years, mainly the village of Issawiya). In numerous cases, Bagatz rejected the claim that East Jerusalem is an occupied territory, which therefore raises the question of whether the judges ignored the closures in East Jerusalem because this area is outside the 1967 borders or rather since its residents are invisible to them.
After that dramatic introduction, the verdict itself turns out to be yet another generic judgment, similar to the countless rulings that the Bagatz judges have written in recent decades on the rights of the Palestinian population in the Occupied Territories.
This time, however, Ultra-Orthodox Bnei Brak played the role of a Palestinian village while the Ministry of Health took the role of the military commander. Just as the Bagatz judges blindly accept the decisions of the military commander in the Occupied Territories and see them as being based 100% on professional considerations with no trace of any political motive, this time around they relied entirely on the professional considerations of the government and the Israeli Ministry of Health.
The judges laconically examined the proportionality tests – whether a rational relationship exists between the closure and its purpose, whether the measure that was taken is the least harmful, and whether the benefit of the closure does not outweigh the damage that may be caused by it.
The judges began by stating that they have no time to “slide into dissertations” and that “the time for all of these will come after the epidemic is over, the dust will settle and we will let the wise scholars to elaborate.” Indeed, one can imagine how each of the three judges took a quick slide on a sliding pond into their predetermined judgement, that the decision of closure is constitutional and it is based on purely professional considerations that should not be disputed.
The ease with which judges have allowed the government to place a closure on Bnei Brak only proves how weak the Israeli High Court of Justice really is. After 53 years of thin as ice oversight of Bagatz on the Israeli government’s actions and policy in the Occupied Territories, it is impossible for the Judges to change their “automatic pilot” mode, even when they are asked to rule against the government in a case concerning the rights of 185,000 Jewish people living inside Israel.
It is highly doubtful whether Bagatz will be able or whether its judges have the will to defend whatever remains of Israeli democracy after 10 years of the Netanyahu family’s reign, if some of the emergency measures continue when the Corona crisis is already behind us.