Times are changing and fast.
Israel’s largest circulation daily, Yediot, featured yesterday a startling article that dared utter the “A” word, apartheid. The paper’s legal affairs editor wrote the following article (provided to me in translation via an Israeli source):
Apartheid is here / The forbidden road
Op-ed, Boaz Okon, Yediot, November 8 2009
Israel is not an apartheid state, which is why it will never have separate roads for Arabs and Israelis. This is why it must not have, not even in the territories, two separate legal systems for Jews and Palestinians.
Two lines are all it takes to nullify the apartheid regime in the territories. There is no reason to explain too much. It is self evident.
Had the High Court of Justice ruled that way in the affair of the exclusively Jewish road, its ruling would have joined a series of historic judicial statements. It would have been equal to the statement by Lord Mansfield, one of the greatest jurors ever, who established in the 1771 Somerset verdict that slavery is illegal, and was cited as saying: “The air of England is too pure for any slave to breathe.” It could have matched the verdict of the US Supreme Court in the case of Brown v. Board of Education which, in just a few pages, abolished racial segregation. If you will, it could be on par with Hillel the Elder, who summed up the entire Torah with a single phrase: “That which is hateful to you, do not do to your fellow. Now go and learn the rest.”
The court, however, chose a different path. It established that the arrangement that bans Arab entry into a segment of Road 3256 is wrong, but instead of ruling against the very segregation and declaring it wrong, the court weighed the benefits of that segregation against its potential damage and established that the total closure of the roads to Arabs, which was meant to protect some 150 Israelis who live there and use that road, is disproportionate because it impairs on the normal life of thousands of Palestinian residents.
The court thus ruled against this specific arrangement, but its ruling was still based on the assumption that segregation is allowed. The apartheid regime has already been implanted in our subconscious minds. All that is left to do now is to check whether it is proportionate.
The Family Court went a step further in another affair where it discussed a case of two Christian-Arab girls aged 7 and 10 whose mother registered to a Jewish school of arts that is attended by Arabs too, though few. Their father demanded that they go to an all-Arab school. The girls asked the court to let them stay in the arts school. The court ruled that in the end of this school year, the girls will be transferred to the Arab school.
This may possibly be the inevitable solution, given that particular family situation, but it is interesting to see how naturally segregation is accepted in Israel. The court established: “Our point of departure is that national identity is a very important element… of a child’s world.” It endorsed the stand of the social worker, according to which their identity as Christian-Arabs “will accompany them for the rest of their lives, which is why there is good reason to establish this identity through their education, and one way to express that would be incorporating the minors in a school that matches their identity.” The underlying assumption here is that observing national identity requires segregation, which is sanctified and presented as a basic right that needs protection. Not a word was said about the disadvantages of segregation.
Segregation is charging at us from the territories, where apartheid already exists because there are two judiciary systems there. The court could have quelled that phenomenon by unequivocally ruling against separate roads. It did not, and thus created a situation whereby practical separation has turned into legal segregation.
This is how basic assumptions are forgotten. It is impossible to attain equality by way of segregation. No cheap haggling or calculating cost against benefit could justify the existence of two separate justice systems, one for Arabs and one for Jews. The use of the proportionality principle might create an impression of an implicit legalization of segregation on other, more “proportional” roads.
We must remember: We cannot have such a road.