Dr Annie Irfan (UCL Arts and Sciences) describes in The Conversation how the "rule of reasonableness" that was recently overturned in Israel predates the state itself, and what it means for the future of the country.
Israel’s parliament has voted to significantly shrink the power of the country’s supreme court as part of a long-telegraphed plan that has bitterly divided the country. In a highly controversial vote boycotted by the opposition, the Knesset - or parliament - struck down the "rule of reasonableness" that had previously enabled the supreme court to overrule government decisions.
The measure paves the way for Israel’s far-right government to enact more extreme measures and has been met with some of the biggest protests in Israel’s history. While the resulting unrest is being described as a "battle for Israel’s soul", the law that was struck down actually predates the state of Israel and is rooted in its antecedent: the British Mandate of Palestine (1922-48).
The British army entered Palestine in late 1917 and occupied the whole country the following year. Coming towards the end of the first world war, the British occupation put an end to 400 years of Ottoman rule in Palestine.
It also reneged on British promises made during the war to Arab nationalists, in an act of duplicity that was to have lasting effects.
In 1922, the newly created League of Nations added a veneer of international legitimacy to the British occupation when it granted the Mandate for Palestine. The mandate system was ostensibly designed to prepare colonised territories for self-governance. In practice, it facilitated another form of colonial rule by Britain and France - by no coincidence, the same powers that dominated the League.
In the case of Palestine, the Balfour declaration of 1917 was inserted into the text of the mandate. This meant that Britain’s mandate committed it to the contradictory goals of supporting both Palestinian self-governance and "the establishment in Palestine of a national home for the Jewish people".
The British system of rule in Palestine provided much of the basis for the subsequent Israeli state. This included the "test of reasonableness", which dates back to 16th-century English public law and means that laws must be properly considered and not arbitrary.
After 1948, Israeli jurists adopted and developed the principle of "reasonableness" as part of the supreme court’s system of checks and balances over the Knesset. In overturning it this week, the Knesset removed one plank of Mandate Palestine’s lasting legal infrastructure.
Reasonableness is not the only British mandate law absorbed by the Israeli state. On establishment in 1948, Israel also adopted the mandate’s defence (emergency) regulations, which provided extensive powers for cracking down on insurgency and political opposition. The regulations have remained in place in Israel ever since, meaning that the country has always existed in an official state of emergency.
Israel’s use of the regulations has nearly always targeted Palestinians, on both sides of the green line (armistice line that in 1949 formed the de facto border between Israel and what was left of Palestine).
It first applied them to the 150,000 Palestinian Arabs who remained within the borders of the new Israeli state in 1948. While this group were offered Israeli citizenship - leading the state to call them "Israeli Arabs" - they did not hold it on the same terms as their Jewish neighbours.
Until the end of 1966, Israel used the regulations to place Palestinian citizens under martial law. This limited their freedom of movement and subjected them to curfews, administrative detention and even expulsions.
It served as a model for Israeli military rule over stateless Palestinians in the West Bank and Gaza Strip, which began just six months after martial law was lifted from Palestinian citizens.
To this day, Israel continues to use the regulations to deploy punitive measures in the occupied Palestinian territories. These typically include house demolitions, deportations, administrative detention, curfews and closures.
Why are these legal connections to mandate Palestine significant? First, they illuminate the lasting impact of British rule, despite widespread UK imperial amnesia.
While Britain was "only" in Palestine for 30 years - compared to more than 70 years in Egypt, and around 200 in India - its legacy has lasted far longer than this and continues into the 21st century. As the British Empire’s impact remains something of a toxic debate in the UK today, this provides an important perspective.
This background is also revealing about the nature of both the Israeli state and Israeli society. Until this week, Israel had retained both the reasonableness principle and the emergency regulations, but had used them in strikingly different ways. While the former was applied in the service of democratic norms, the latter is used to enforce a military regime over an occupied people.
It is not unusual for post-colonial states to retain some laws from the colonial era. However, this set-up highlights how Israel itself operates as a colonial power over Palestinians - despite protestations to the contrary.
Finally, it is striking that Israeli citizens have come out en masse to protest the overturning of the reasonableness principle, while largely overlooking the antidemocratic emergency regulations. As the protesters claim they are fighting for democracy, it is worth considering this difference - along with the undemocratic origins of the laws themselves.
This article originally appeared in The Conversation on 26 July 2023.
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