Last update - 04:10 25/05/2004
By Yuval Yoaz
Two crucial decisions changed the face of public law in Israel. The more famous of the two was handed down by the High Court of Justice in 1988 within the framework of the "Ressler affair," which concerned a petition to draft yeshiva students. That judgment, which was written by Justice Aharon Barak, stipulated for the first time that one did not have to be personally harmed by a state authority to petition in court against it; a "public petitioner" seeking to represent a general public interest could also go to court against the authority in question. The second decision, which is hardly known to the public at large, was that of the New Israel Fund (NIF) some 20 years ago, to train young lawyers as professional jurists in human rights cases, in a project called the Israel-U.S. Civil Liberties Law Program.
The NIF's program, which operates in cooperation with the Washington College of Law of Washington, D.C.-based American University, and the financial and logistic assistance that the NIF has provided over the years to establish and expand human rights organizations, have played a central role in changing the human rights map in Israel, not least by means of public petitioners seeking redress from the High Court of Justice.
The program has trained 46 lawyers in the past 20 years. The idea was simple and it continues to be implemented diligently: Two or three lawyers are sent to Washington every year, and within one year they manage to cram in all the studies for a master's degree. The curriculum centers around international law and human rights, and includes articling for one of the rights organizations in the U.S. The NIF provides a scholarship to the tune of $2,000 a month and the university waives the tuition fee. The lawyers undertake to return to Israel at the end of the year and to work for a year in one of the local human rights organizations.
The deal pays off for both sides. Nongovernmental organizations (NGOs) in Israel get a trained and committed attorney, and many of the program's graduates stay on after the obligatory year and remain in public law. At the same time, lawyers who want to channel their career into the human rights field get a foothold in the sphere and the invaluable opportunity to see first-hand how things are done in America.
"When the program was launched 20 years ago, there was no cadre of lawyers who dealt with public issues and with human rights," says Hamutal Guri, the coordinator of the program for the NIF in Israel. "Today it's easy to see that this sphere of law exists. The discourse on the subject has trickled down to curricula in the universities and to the media. Our graduates can be found in the Justice Ministry, in academia and some on the judicial bench. Our graduates established most of the law departments in the existing human rights organizations and also established many new organizations."
The first initiative for the program came from Prof. Herman Schwartz, from American University. "He conceived the idea, he convinced the NIF, he raised the initial funds, he persuaded his university to exempt students in the program from tuition and he got his friends in American organizations to take on students with no knowledge of American law as law clerks," says attorney Joshua Schoffman, a graduate of the first class of the program and today a senior figure in the Justice Ministry.
"At first we succeeded in getting the support of Israeli bodies quite easily," Prof. Schwartz says in a phone call from Washington. "And, surprisingly, my university also willingly became part of the project. The American organizations agreed to accept foreign students as law clerks even though they weren't familiar with the local system of law."
The program's graduates can be found in all branches of the legal system. Some of them have remained in independent organizations, some work in the service of the establishment - the Justice Ministry, the State Prosecutor's Office, as public defenders and as judges. Some have furthered their academic career while others have gone into the private market and deal with human rights, in some cases pro bono.
Torture by the Shin Bet
The Israelis who have been accepted into the program became involved because they were interested in human rights and wanted to bring about social change. They became a conduit for the acceptance in Israel of ideas that were being implemented by the "Human Rights Bar" (as the community of human rights lawyers in the United States is known). Washington was and remains the capital of this public activity - a magnet for lobbyists and public opinion molders who want to influence members of Congress and the White House. The American NGOs thus became a model for internalization and implementation in Israel.
Attorney Avigdor Feldman, for example, dealt with the rights of the Palestinians in the territories back when he was still an employee in the law office of attorney Amnon Zichroni. In Washington he clerked, in addition to completing his studies, for the National Association for the Advancement of Colored People (NAACP), the veteran equal-rights organization, which is responsible for the precedent-setting anti-discrimination judgment by the Supreme Court in "Brown vs. Board of Education" exactly 50 years ago.
"Working for the NAACP entailed traveling all over the U.S.," Feldman recalls. "Among other events, I attended a civil rights evening in a church in Alabama and I took part in a legal proceeding dealing with inequality in the right to vote in Texas."
After his return, Feldman spent a year working for the Association for Civil Rights in Israel (ACRI), which has been in existence since 1972 and as such has the title of the oldest human rights organization in Israel. There were hardly any other similar organizations at the time, and none of them employed full-time lawyers.
"I can credit myself with establishing ACRI's Legal Defense Center. It was there that ACRI first began its litigation activity, which met with tremendous success," Feldman says. "The American model was very effective in that it made us realize how much one could draw on the help of the courts to bring about social changes."
Feldman has represented countless petitioners to the High Court of Justice and is responsible for many decisions of principle. Among his notable cases, he represented the Sephardi Democratic Rainbow and persuaded the High Court to bar the rezoning of farmland for construction purposes; he represented the actor and director Mohammed Bakri in the petition in which the court overturned the censor's ban on Bakri's film "Jenin, Jenin"; and he represented the Public Committee Against Torture in the judgment that barred the Shin Bet security service from using even "moderate physical pressure" in the interrogation of suspects.
If Feldman returned from his American year straight into the arms of ACRI, Joshua Schoffman was an active member of the organization even before his year in Washington. Schoffman, who immigrated to Israel from the U.S. in 1975, was chosen for the first class of the program from among three candidates. During his studies he clerked for the American Civil Liberties Union (ACLU). He then returned to ACRI and worked as its legal adviser for nine years, after which he crossed the lines into the state prosecution. Schoffman represented ACRI in the judgment that overturned the decision by the censor to ban the staging of Yitzhak Laor's antiwar play "Ephraim Returns to the Army." He also represented Leah Shakdiel in the petition that forced the authorities in the southern town of Yeruham to admit her as a member of the local religious council. (The state was represented in that case by attorney Menachem Mazuz, who is now the attorney general). He also persuaded the court to instruct a Jerusalem burial society to permit a petitioner to have his wife's name engraved on her headstone in Latin letters and the years of her birth and death in numerals (rather than Hebrew letters). Today, too, he says, in his capacity as assistant attorney general for legislation, the commitment to human rights that he acquired in the program continues to find expression.
Dan Yakir volunteered to work for ACRI while he was still a law student, and for him the NIF program was an opportunity to continue working for the organization, this time for pay. He has been ACRI's legal adviser for some years. In Washington, Yakir worked for the ACLU and was even able to leave a minor imprint on American legal history.
"The main case I worked on was a petition that was submitted to the District Federal Court in the city against a new bylaw of the City of Washington, which imposed a night curfew on minors following a wave of murders in the city. I was sent to dig into the archives to see how many murder cases would have been pre vented if the bylaw had existed at the time. I discovered that most of the murders took place in closed places and not in the street, so the curfew wouldn't have prevented them. I submitted an affidavit to the court, and the affidavit is cited in a footnote to the judgment in which the bylaw was ruled illegal. The judgment was published in the Federal Report, so I am perpetuated in American law."
Together with attorney Neta Ziv, Yakir represented the Ka'adan family - Arab citizens of Israel - in the petition that found in favor of the family's right to build a home in the community of Katzir, which was established on Jewish Agency land. He was the attorney in the case that led to the broadcast of a television program about homosexuals, and he currently represents ACRI in many pending petitions, including the one seeking the abolition of the amendment to the Citizenship Law, which prohibits family unification of Arab citizens of Israel with Palestinians who are residents of the territories.
Freedom of information
Many of the lawyers who are accepted to the program return from the U.S. with a clear agenda, or at least with a definite area of specialization, which afterward becomes their primary occupation. It would be hard to say that attorney Gidon Bromberg "discovered" the field of quality of the environment during his year in Washington, as even before that he did volunteer work for the Israel Union for Environmental Defense, but the fact that he clerked for the Center for International Environmental Law and in the environmental unit of the U.S. Department of Justice proved to him that significant achievements in this sphere were possible.
"Washington is the center of the world for environmental issues," says Bromberg, who today is the director of the Tel Aviv branch of Friends of the Earth - Middle East, "and it's an opportunity to learn from everyone's experience." Bromberg wrote his Ph.D. thesis on "Quality of the Environment and the Peace Process in Israel," in 1994, and reached the conclusion that the ideas of sustainable development have to be part of the process of conciliation in the region.
Back in Israel, parallel to his work for the Union for Environmental Defense, he submitted a proposal to an American foundation for the establishment of an environmental body in which Israelis, Palestinians, Jordanians and Egyptians would cooperate. "Within a week I got a phone call from Washington saying, quote, 'If you can do it, we will fund it.' Nothing like that had ever happened to me before." Within two months he established Eco-Peace, which subsequently became the Middle East branch of Friends of the Earth.
Dr. Yuval Karniel, who is now involved in academic work in the areas of law and the media, worked in National Security and Civil Liberties during his year in Washington. The organization deals with censorship and publication of information in the national security sphere. It was there that he first encountered the American Freedom of Information Act. "In the course of my work I came to realize that there should be similar legislation in Israel, and when I returned I was one of the sponsors of the Israeli law on the subject. I was then a member of the Ostrovsky-Cohen Commission, which was appointed to formulate the Freedom of Information Law, and it was enacted in the wake of the commission's recommendations. That is the thing that I brought directly from the program."
The discrimination that Banna Shughry-Badarne experienced from childhood, both as an Arab and as a woman, led her to become involved in the human rights sphere as an adult. In Washington, Attorney Shughry-Badarne, who is with ACRI, worked in two organizations which, each in its way, reflected her primal sense of discrimination. "I worked in the women's unit of Human Rights Watch, where we dealt with discrimination against women in the Middle East and with women's status in family law from an inter-state perspective. Afterward I did volunteer work for the American-Arab Anti-Discrimination Committee, which dealt with discrimination against Arab-Americans, mainly in the work sphere. In my studies I concentrated primarily on feminism, multiculturalism and women's rights."
Perhaps the most difficult part of her experience, she says, was coping with the unrest of October 2000 in the Arab sector in Israel, which occurred during her stay in Washington. "It was extremely difficult for me to be abroad when all those things happened in Israel, and especially when one of my relatives was murdered during those events."
As part of NIF's desire to have Arab lawyers represented in the program, attorney Hassan Jabareen also spent a year in Washington. Like Bromberg, Jabareen, who then worked for ACRI and was a teaching assistant in the law faculties at Tel Aviv University and the University of Haifa, returned to Israel with a clear plan to establish a new independent organization. "In the past, law studies in Israel didn't include a critical perspective. The law student was trained to enter the business world and that was all. In the U.S. I encountered new ideas. I worked in the NAACP and there I found a model of how to succeed in an organization that advocates minority rights."
In 1999, following another year at ACRI, Jabareen founded Adalah - The Legal Center for Arab Minority Rights in Israel, which today has 20 employees, eight of them lawyers. High Court of Justice rulings in the wake of petitions by Adalah have fomented a revolution in the legal struggle for the rights of the Arabs in Israel. Thus, the court ruled that the state must implement affirmative action methods in the appointment of Arabs to boards of directors of government companies and that local governments in mixed (Jewish-Arab) cities must add Arabic to municipal signs and posters. A series of other petitions have demanded that the state budget the Arab sector equally in the realms of burial, religious services, health, etc.
The elitism problem
Despite the almost wall-to-wall positive feedback of the NIF's program, there are some who find fault with it: for example, the fact that for many years, until the human rights organizations consolidated themselves economically and began to pay their employees and lawyers a decent wage, it was difficult to view this track as a legitimate choice for a career. With a part-time job at best, or an invitation to volunteer in other cases, legal work in the human rights sphere was a genuine option only for those who could afford it - lawyers who were well-established economically. This elitism was one of the reasons for the fact that until quite recently, the occupation with rights addressed civil and political rights almost exclusively, and not social rights.
"When I completed my studies I wanted to work for human rights organizations, but the salary was extremely low, and when you have to finance yourself and also support a family, it's simply impossible," says attorney Yisraela Gratzyani, a graduate of the program and currently the legal adviser to Yedid: The Association for Community Empowerment in Israel.
"And then you get a loop effect, because those who embark on this track are those who can do so from the economic point of view. In the interview for the program I was asked why I had worked in the private market instead of for rights organizations, and I told them I couldn't afford to work for the organizations. Today I am very pleased to see people from all classes who are starting to have an impact on public law."
Dr. Neta Ziv, today the director of clinical education programs at the Tel Aviv University Faculty of Law and a lecturer in the faculty - she represented Alice Miller in the petition that compelled the Israel Air Force to accept her to a pilots' training course - offers a different explanation for the dominant tendency of the Israeli human rights community to deal with "bourgeois rights" such as title, freedom of expression and the right to equality, a tendency that has slowly begun to change only in the past year or two.
"We were all very influenced by the American conception, maybe even detrimentally," says Ziv, who is also a graduate of the NIF program. "It's no coincidence that our public law has only recently begun to deal with social rights and with the social aspects of being an attorney. I also came back from America with a worldview which I no longer hold: that social rights are not really part of the human rights agenda. Today the picture is more complex: We find a development of the concept of weak and poor groups as areas that lawyers deal with."