The Ethos of the Israeli-Palestinian Conflict as Reflected by

the Judgments of the Israeli Supreme Court 1948 - 2006

Thesis submitted for the degree of

“Doctor of Philosophy”

By Ofer Shinar Levanon

Submitted to the Senate of the Hebrew University of Jerusalem

September 2015

2

The Ethos of the Israeli-Palestinian Conflict as Reflected by

the Judgments of the Israeli Supreme Court 1948 - 2006

Thesis submitted for the degree of

“Doctor of Philosophy”

By Ofer Shinar Levanon

Submitted to the Senate of the Hebrew University of Jerusalem

September 2015

3

This work was carried out under the supervision of:

Prof. David Kretzmer, The Hebrew University of Jerusalem

Prof. Daniel Bar-Tal, Tel Aviv University

4

Abstract

The present research explored changes in the intensity of expressions of the social ethos of the

conflict in all published decisions of the Israeli Supreme Court from 1948 to the end of 2006

related to 1the Israeli-Palestinian conflict. Conflict resolution researchers have observed the

prominent role that psychological factors play in societies involved in prolonged and violent

conflict, including the Israeli-Palestinian conflict. These psychological factors determine to a

considerable extent not only the intensity of the conflict, but also possibilities of a peacemaking

process. While the psychological repertoire of Israeli society as a party to the Israeli-Palestinian

conflict has been studied extensively in the context of political, cultural, and social apparatuses,

legal aspects, as reflected by the role of the Israeli Supreme Court in constructing, sustaining or

reflecting the ethos, has yet to be studied in depth.

The present research investigated the effect of the context of intractable conflict on the

functioning of the Court as a societal organ which cannot overlook particular social conditions.

In this manner, the present study makes a twofold contribution: on the one hand, it illuminates

the way the Court acts as the highest legal institution in a state and on the other hand, it

contributes to the understanding of societal functioning under conditions of intractable conflict.

The research major results were the following:

Four prominent societal beliefs of the ethos of conflict were found in database decisions:

delegitimization of the opponent; security; own victimization and justness of own goals.

Ninety percent of the yearly results of the average number of expressions per decision per

year, for each of the four ethos societal beliefs, are within less than one standard deviation of

the average number of expressions per decision per year for the whole database period.

Peaks in expressions of predominant societal ethos of the conflict beliefs are evident in

specific periods: 1979 had the highest accumulated standard score with regard to the use of

the four predominant ethos societal beliefs by the court, having a standard score of 11.45.

The significance of 1979 as a peak year is further supported given that 1978 attained an

1

5

accumulated standard score of 7.43 (fourth highest standard score), and 1980 attained an

accumulated standard score of 3.87 (sixth highest standard score). An additional peak period

is 1964-5, the third and second highest accumulated standard scores, respectively (7.93 and

8.72).

Societal beliefs of ethos of conflict are predominantly more evident than alternative beliefs:

87 percent as compared to 13 percent. For all eight clusters of societal beliefs, the average of

ethos of conflict expressions per year is significantly higher than the average of alternative

beliefs regarding the same topic.

4.9 percent of decisions resulting in a Palestinian loss included expressions of alternative

beliefs while 31.7 percent of decisions resulting in a Palestinian win manifested alternative

belief expressions. The results with regard to expressions of ethos of the conflict reveal an

opposite trend: 67.9 percent of Palestinian losses included expressions of the ethos of the

conflict while only 62.2 percent of decisions resulting in a Palestinian win included

expressions of ethos of the conflict societal beliefs.

Decisions including either dissenting opinions or an extended panel have significantly more

expressions of each of the four predominant ethos societal beliefs – usually more than twice

the average in all database decisions.

An expression of one theme of ethos of conflict in a database decision increases the

likelihood of an appearance of additional themes in the same decision.

6

Contents

Chapter I – Introduction 7

Chapter II – The Israeli Society and the Ethos of the Conflict 16

Chapter III – The Israeli Supreme Court 54

Chapter IV – The Present Research: Goals 98

Chapter V – The Present Research: Methodology 112

Chapter VI – Results 126

Chapter VII – Discussion and Conclusions 165

Bibliography 221

7

Chapter I – Introduction

The point of departure of the present research is that Israeli Jewish society is involved in a

prolonged and violent conflict that requires that it face significant challenges. As a result, society

develops a socio-psychological infrastructure which serves important individual and collective

adaptive functions in the context of such conflict. The central element of this infrastructure is an

ethos of conflict, defined as a configuration of shared central societal beliefs that provides a

distinctive dominant orientation to a given society, illuminating the present state of affairs under

conditions and experiences of a prolonged and violent conflict. The ethos of conflict provides a

straightforward picture of the conflict, its goals, its conditions, its requirements, as well as both

images of society’s own group and that of the rival group (Bar-Tal, 2000, Bar-Tal, 2007). Ethos

in general gives meaning to the societal life of a particular society and serves as one of its major

foundations: It binds the members of society together, along with the goals and aspirations that

impel them toward the future (see, e.g., McClosky & Zaller, 1984).

The present research explores changes in the intensity of expressions of the ethos of the conflict

in all published decisions of the Supreme Court from 1948 to the end of 2006 related to the

Israeli-Palestinian conflict, which arguably is the most significant expression of the Israeli-Arab

conflict. Conflict resolution researchers have observed the prominent role that psychological

factors play in societies involved in prolonged and violent conflict, including the Israeli-

Palestinian conflict. These psychological factors determine to a considerable extent not only the

intensity of the conflict, but also possibilities of a peacemaking process. While the psychological

repertoire (the societal beliefs of ethos of conflict and collective emotions) of Israeli society as a

party to the Israeli-Palestinian conflict has been studied extensively in the context of political,

cultural, and social apparatuses, legal aspects, as reflected by the role of the Israeli Supreme

Court (“the Court”) in constructing, sustaining or reflecting the ethos, has yet to be studied in

depth. The following research offers a detailed view of the manner and extent to which all

published judgments of the Court dealing with the Israeli-Palestinian conflict reflect the ethos of

conflict of Israeli Jewish society (see discussion in Chapter 2).

8

While it can be assumed that the Court judgments reflect the ethos of the conflict in a similar

manner to other Israeli institutions (see below and in chapter 2), the relations between the

Court’s judgments and society’s beliefs is far from clear and straightforward: for example,

discussing the role of judges in a Supreme Court, former Chief Justice Aharon Barak stresses

that the non-accountability principle, embedded in the position of judges, allows them to express

deeply held social principles rather than values currently held by majority of society’s members.

Consequently, adds Barak, decisions taken by judges, who follow this prescription, are likely to

be unpopular (Barak, 2006). In other words, courts should act as a counterbalance to popular

trends in society, and in the context of the research, this may lead to a Supreme Court which does

not reflect societal values but rather other, "deeper", values, which, according to Barak, are

democratic principles (for an extended discussion of society’s beliefs and the Court adjudication

see chapter 3).

While the tangible impact of the Court, which has arguably undertaken a major role in the

conflict, legitimizing the actions of the state, as well as the Court's own status, has been the

subject of extensive research (see chapter 3), the psychological ramifications of its decisions

have seldom been discussed before, and few attempts have been made to study the Court’s

decisions in the context of the extensive knowledge available on socio-psychological ethos of

societies involved in prolonged and violent conflicts as manifested by state and social

institutions.

The present research is likely also a pioneering study of judicial decisions in the context of

intractable conflict: While intractable conflicts occur around the world, the Israeli-Palestinian

conflict is a paradigmatic example of this type of conflict. The present research investigates the

effect of the context of intractable conflict on the functioning of the Court as a societal organ

which cannot overlook particular social conditions. In this manner, the present study makes a

twofold contribution: on the one hand, it illuminates the way the Court acts as the highest legal

institution in a state and on the other hand, it contributes to the understanding of societal

functioning under conditions of intractable conflict.

9

As a latent contribution, the significance of the present study stems also from the creation of a

large scale database, consisting of all published decisions regarding the conflict for the Court’s

first fifty-nine years. While the database covers only a small percentage of the total decisions of

the Supreme Court related to the conflict, given that most decisions were not officially published,

it is nonetheless a large sample including most, if not all, major cases which have been covered

by the press and brought to Israeli public attention. The creation of the present research database

allows for additional research, which may not be related to the psychological aspects of the

conflict. Other studies are likely to further examine psycho-social data created as part of the

present research. The availability of thousands of informative results regarding more than one

hundred separate variables provides opportunity for future research, exploring the rhetorical

aspects of the Court’s published decisions regarding the conflict. The following sections will

enumerate some of the notable points about the conflict, the Court and the Israeli Jewish society.

The Impact of the Israeli-Palestinian Conflict on the Israeli Society

The history of the Israeli-Palestinian conflict is long and complex: As noted by Mark Tessler in

his book, ‘A History of the Israeli-Palestinian Conflict’ published in 1994, it has in fact been

"less than a century since Jews and Arabs began to view one another as enemies" (p. I).

According to Tessler, Zionism is “inextricably bound up with the Jews' definition of themselves

as a nation" (p. 19), given that “the history and religion of the Jewish people demanded that their

state be located in the land of their ancestors" (p. 57). Describing the formation of Palestinian

identity Tessler notes that to properly tell the story of the Palestinian people it is “necessary to

give attention to historical experiences which have shaped the identity of all Arabs” (p. 72),

although their identity is defined by membership not only in the Arab nations but also in the

Palestinian nation as well. Exploring Rashid Khalidi notes the fierce conflict between Palestinian

and Zionist identities was developed at an “early stage” of their formation (Khalidi, 1997, p. 6).

Discussing the history of the conflict Tessler notes that during the 1920s land transfer and

immigration were “the major sources of tension” (p. 178), between Palestinian and Jews,

exacerbated in some regions by the insistence of Zionists to hire only Jewish workers (see also:

Shafir, 1996). During the British Mandate, conflict has become a fact of life for the Jews living

in Palestine: the political community of the Arabs and that of the Jews developed independently

10

of one another, a trend which did not begin with, but was “greatly reinforced by events that took

place during the period of British rule” (Tessler, 1994, p. 184). The conflict has reflected

oppositional positions with regard to the right to self-determination, the right of the state to exist

as a national home, as well as religious and cultural interests (Gerner, 1991; Morris, 1999;

Tessler, 1994).

The conflict has become prolonged and violent: The presence of violence and the length of

violent periods have led conflict resolution scholars to categorize the Israeli-Palestinian conflict

as an intractable conflict (Rigby, 1995; Rouhana & Bar-Tal, 1998; Kriesberg, 2001). Intractable

conflicts are defined as being total in nature, violent and of zero sum nature, perceived as

irreconcilable by the members of the societies involved in the conflict, lasting at least a

generation, involving all society members and requiring great collective and personal

investments (Bar-Tal, 1998; Kriesberg, 1998).

In order to cope with the stress resulting from living under prolonged threat of violence, a

psychological repertoire, shared by the majority of members of society, evolves in societies

involved in intractable conflicts (Bar-Tal, 2007). Some aspects of the repertoire acquire the

status of ‘protected values’, the violation of which is considered an abuse of society’s

fundamental ethics (Tetlock, 1999, 2003; in the context of the Israeli-Palestinian conflict see

Landman, 2010). Intractable conflicts are perceived by members of the society as resulting from

contradictory goals and interests, which are therefore considered essential for the group, for the

society, and for survival (Azar, Jureidini, & McLaurin, 1978; Azar, 1990; Goertz & Diehl, 1993;

Kriesberg 1993, 1998; Oren & Bar-Tal, 2006). This psychological repertoire influences

societies’ perceptions, attitudes, motivations and patterns of collective action in the conflict. It is

thus not surprising that socio-psychological processes make intractable conflicts increasingly

difficult to resolve: According to Coleman, our greatest hope in attempting to resolve an

intractable conflict is trying to prevent the conflict from becoming intractable (2000).

As elaborated in chapter 2, the socio-psychological repertoire of societies involved in intractable

conflicts crystallizes into a shared infrastructure that includes collective memory, ethos of the

conflict as well as a collective emotional orientation (Bar Tal, 2007, see chapter 2). The ethos of

11

a society is the basis for a common societal view of the world and hence one of the foundations

for a common societal life. Members of a given society must have basic shared views in order to

experience a sense of belonging and identification, as well as to lead an integrative and

coordinated life as part of one entity. In this respect, ethos provides the connection between the

individual and society. While developing their identities as members of society, individuals also

acquire the shared beliefs of the ethos. Therefore, societies make a special effort to impart the

beliefs of the ethos to its members as part of their social identity. As a result, societal beliefs of

the ethos are shared, to a great extent, by members of society. This process can be viewed as an

indicator of societal integration and social cohesion (Epstein, 1978; Bar-Tal & Oren, 2000).

In a prolonged situation of intractable conflict that lasts for at least 25 years, societies develop an

ethos of conflict in order to cope with its challenges. Research has suggested that both Israeli and

Palestinian societies have developed an ethos of conflict of rigid societal beliefs due to their

involvement in the intractable conflict (Bar-Tal, 2007, 2007a; Rouhana & Bar-Tal, 1998). Given

the significant role played by the societal beliefs of the ethos of conflict in the context of it

becomes part of the content defining collective identity (David & Bar-Tal) . Indeed, the Arab–

Israeli conflict through the ethos of conflict shapes the Israeli national identity, but is also

influenced by changes in the context of the conflict (Kimmerling & Backer, 1985; Ben-Eliezer,

1998; Bar-Tal, 2007; Oren, Bar-Tal & David, 2004). An example of the intricate relations

between the psychology of Israeli society and the conflict is provided by Pruitt (1997), who

argued that motivational ripeness – the desire to end the conflict – had been growing in Israel in

the period just before the Oslo peace negotiations, as a result of the perceived high cost of the

Intifada and growing concerns about the rise of Islamic militant groups and states.

The social role of the shared socio-psychological repertoire is further enhanced in the context of

Israeli Jewish society, given the divided nature of the society, consisting of subgroups, each with

different perceptions of the goals, practices, and narratives that should define Israel (Smooha,

1978; Kimmerling, 2001; Shafir & Peled, 2002). It creates uniting view of the conflict providing

much needed unity and solidarity.

12

The Israeli Supreme Court

The shared socio-psychological repertoire of Israeli Jewish society has become institutionalized

and widely disseminated through the various social institutions such as schools, as well as

through the popular media. The following research complements studies regarding the ethos of

the conflict as manifested by other political and social mechanisms as well as cultural products,

including Israeli literature (Cohen, 1985; Ben Ezer, 1977), mass media (Yadgar, 2004), national

ceremonies (Arviv-Abramovich, 2004), political leaders’ speeches (Rosler, 2012), theatre and

cinema (Gertz, 1995, 1998; Urian, 1996; Shohat, 1989) poetry (Tessler, 1999) and even in

common expressions of the Hebrew language (Tsur, 2013). The manner in which the educational

system has used the ethos has also been extensively researched (e.g., Bar-Tal, 1998a and b;

David, 2007; Firer, 1985; Podeh, 2002). Some of these studies have focused on a single aspect of

the ethos, such as the de-legitimization of the opponent (Cohen, 1985), or security (Bar-Tal,

Jacobson, & Klieman, 1998); yet others have reflected the full scope of the ethos' societal

beliefs.

Nevertheless, many of the themes of the ethos of conflict still prevail among a large portion of

the Israeli Jewish public (Bar-Tal et al. 2010). They are evident in public discourse and are

reflected in the political arena, in speeches by Israeli elected leaders, in national and cultural

symbols, and in official ceremonies (See, for example, Magal, Bar-Tal & Halperin, in press).

The Supreme Court (“the Court”) is the most important court in Israel: Its decisions are at the

center of the canon of the Israeli legal system (Shachar, Gross & Goldschmidt, 2004) and the

Court has played, and continues to play, a major role in the context of the conflict (see Chapter

3). However, manifestations of the shared psychological repertoire have yet to be studied in the

context of the Court's decisions. The Supreme Court has a unique role regarding the conflict:

First, it is the highest court in Israel; second, it is well respected by Jewish Israeli society and

third, it deals with some of the most difficult aspects of the conflict, at times, singlehandedly (see

Chapter 3). While other political or social institutions can often disregard or distance themselves

from morally objectionable and legally questionable aspects of Israel’s involvement in the

conflict, the Court seldom has such a privilege: Although the Supreme Court’s involvement in

13

public life is dependent on the nature of the cases brought before the Court, it has dealt with

many, if not most, significant aspects of the Israeli-Palestinian conflict (see Chapter 3).

The legitimacy of all judicial systems in democratic society depends upon the perception of

courts as neutral arbiters, evenhandedly applying existing rules and principles. Should a court

stray too far from socially held core values, its social legitimacy will likely diminish.

Functioning as the High Court of Justice, the court has positioned itself, at least symbolically, as

the gatekeeper of Israel’s democracy (Ben Naftali & Shany, 2003). Its judges are regarded not

only as legal experts but also as "guardians of society's moral fabric" (Kretzmer, 2002, p. 190).

Yet during the last decade the Court's alleged policy of judicial activism has been under attack

by political leaders, among them former Minister of Justice, Daniel Friedman, who waged a

campaign to curb the power of the Court (Navot & Peled, 2009). However, it has also been

criticized for its lack of willingness to utilize judicial powers in certain circumstances: Scholars

who have studied the role of the Supreme Court with regard to the conflict with the Palestinians,

and especially its role during more than four decades of military occupation of the Palestinian

territories, have criticized the Court's unwillingness to support the cause of human rights and to

uphold the norms of international law with regard to the occupation of the civilian Palestinian

population (see, for example, Shamir, 1990; Sheleff, 1993; Kretzmer, 2002, Sfard, 2003).

The Present Research

The present research explores the changes in manifestations of the ethos of the conflict in the

decisions of the Supreme Court from 1948 to the end of 2006. It stems from the assumption that

the Court has drawn extensively from the Israeli society's ethos of the conflict. This is

manifested by the language of its judgments regarding the conflict, judgments which the Court

may not have been able to justify using the applicable legal norms. Moreover, the Court as the

supreme judicial institution could not ignore the influential context on every aspect of societal

life. Finally, judges are individuals who share social identity with their society, and as such are

likely to hold societal beliefs of the ethos of conflict.

14

The role the Court has played in dramatic events which have shaped the conflict may further

suggest that a study of its judgments may not only reflect the ethos but also provide insight into

the way it has contributed to ethos construction, solidification and change. In this respect, it has

been argued that the Supreme Court has played a leading role in the creation of the linguistic

infrastructure which has legitimized the occupation and the settlements (Kimmerling, 2002;

Lynk, 2005).

The present research is exploratory: while the research stems from the assumption that the court

has played a major role in promoting the ethos of the conflict, no additional assumption has been

made, mainly due to the lack of prior research regarding the role of courts in promoting or

reflecting the socio-psychological infrastructure of societies involved in intractable conflicts.

Given the exploratory nature of the research, all published decisions were researched, rather than

a sample of the decisions, allowing for an inclusive perspective on the relations between the

prevalent and shared psychological repertoire and the published decisions of the court.

Contribution of the Present Research

The major contribution to academic scholarship stems from the manner it has utilized social

psychology knowledge and research methodologies to explore an inherently legal subject matter

– the decisions of a court. An examination of the Supreme Court through a socio-psychological

lens expands research of the ethos of the conflict in order to shed light on the workings of a

unique social apparatus, the Israeli Supreme Court. The present research also adds to

accumulated sociopolitical and psychological knowledge by opening a new window on a judicial

mechanism – the Israeli Supreme Court. It therefore allows for extending of the present research

framework.

The Present Research Format

The following chapter explores Israeli society as a side in an intractable conflict, offering a

discussion of the socio-psychological infrastructure of Israeli society and the evolution of Israeli

15

society's ethos of the conflict. The chapter will also include a review of current research

regarding cultural manifestation of the ethos of the conflict and a discussion of the focus of the

present research.

Chapter III examines the Israeli Supreme Court, its legal roles, functions and status as well as the

court’s socio-political roles, functions and status. The chapter will also include discussion of the

Supreme Court and the Israeli-Palestinian conflict.

Chapter IV discusses the goals of the present research, defining research variable considerations

regarding factors and criterions used to create the research database.

Chapter V discusses methodological aspects of the present research. The chapter examines the

selection process of the court decisions for inclusion as part of the research database. The chapter

also examines content analyzing of the selected decisions.

Chapter VI presents the most significant results of the present research, providing insight into the

most significant phenomena observed by the findings of this research.

Finally, chapter VII provides a detailed discussion of major results of the present research,

focusing on the most noteworthy trends emerging from the research results, including the most

prominent ethos societal beliefs, peaks regarding yearly averages of expressions of the most

prominent ethos societal beliefs, ethos expressions and alternative beliefs and functions of the

ethos of the conflict – including issues of legitimacy. The chapter also examines other questions

such as research limitations and contribution to future research.

16

Chapter II – The Israeli Society and the Ethos of the Conflict

Introduction

The Israeli-Palestinian conflict has played a major role in shaping the collective psyche of Israeli

Jewish society: psychological influences of the conflict have shaped tangible aspects of the

conflict, allowing for a vicious cycle of violence to be formed. This phenomenon has also been

observed by researchers in relation to other international conflicts which have been termed

‘intractable conflicts’ (see this chapter for references and discussion of the term).

The following chapter will examine socio-psychological aspects of the Israeli-Palestinian

conflict regarding Israeli Jewish society. The first part of this chapter will explore socio-

psychological features of societies involved in intractable conflicts. The second part will discuss

the influence of intractable conflict on the collective psyche of Israeli Jewish society. Finally, the

last section will briefly explore the focus of the present research, the Israeli Supreme Court's

published judgments relating to the conflict, in the context of the socio-psychological processes

generated by the intractable nature of the Israeli-Palestinian conflict.

Socio-Psychological Concepts

The following section examines the major socio-psychological concepts influencing societies

involved in intractable conflicts.

Shared Beliefs and Ethos

An individual's life experiences are always interwoven within collective structures, events and

processes, in a way that makes it is impossible to separate these individual’s life experiences

from collective structures, events and processes. Thus, the study of the psychological basis of

intergroup relations is a major endeavor of social sciences. Individuals are born into a group or

organize themselves into groups and as a result, most of their behavior is performed within a

group framework. Their experiences are always determined by their membership in collectives

17

(David & Bar-Tal, 2009; Jenkins, 1996; Tajfel, 1981). A determinative element in the “being” of

any group or society, including a nation, is its social identity, defined by social psychology as

“that part of an individual’s self-concept which derives from his knowledge of his membership

of a social group (or groups) together with the value and emotional significance attached to that

membership” (Tajfel, 1978, p. 63). Self-categorization theory extends this elaboration and

provides further explanation of how individuals come to define themselves as group members,

describing the antecedents and consequences of psychological group formation (Turner, 1991;

1999; Turner, Hogg, Oakes, Reicher, & Wetherell, 1987). The fundamental principle that follows

from self-categorization theory is that psychological group formation is the basis for sharing

beliefs. Individuals are motivated to become part of a group, while sharing beliefs allows them to

be accepted as part of the group (Baumeister & Leary, 1995). Bar-Tal (2000) labeled these type

of beliefs in macro-societal systems as societal beliefs, defining them as shared cognitions by

society members that address themes and issues that particularly occupy them and which

contribute to their sense of uniqueness (Bar-Tal, 2000).

Societal beliefs evolve under the influence of particular conditions in which the society lives and

particular collective experiences that shape society. The contents of societal beliefs, organized

around thematic clusters, refer to characteristics, structures, and processes of a society and cover

the different domains of societal life. These beliefs may concern societal goals, self-images,

conflicts, aspirations, conditions, norms, values, societal structures, images of out-groups,

institutions, obstacles, and problems, among others. They constitute a shared view of the

perceived reality of a particular society. Some form the basis for collective narrative, or ethos of

society (Bar-Tal, 2000 & 2007a; Bar-Tal & Salomon, 2006). The concept of social ethos is

defined as the configuration of central societal shared beliefs that provide a particular dominant

orientation to a society (Bar-Tal, 2000), giving meaning to societal life of a particular society. It

constitutes an important continual basis of social identity (Bar-Tal, 2000; Oren, Bar-Tal, &

David, 2004). Ethos provides the epistemic basis for society’s hegemonic consciousness.

According the Bar-Tal, ethos offers “legitimacy to the societal order and fosters integration

among society members” (Bar-Tal, 2013, p. 174). It affords meaning and consistency to social

life enabling members of society to act together “in a coordinated manner within an accepted

system” (Bar-Tal, 2013, p. 174).

18

Members of a given society must have basic shared views in order to experience a sense of

belonging and identification, as well as to lead an integrative and coordinated collective life. In

this respect, ethos connects between an individual and society. The significance of social ethos to

individual members of society is manifested by the drive to protect the group's narrative and

reject those who pose challenges to it. This has been found to be robust among group members in

a variety of cultures and contexts (see e.g., Festinger; 1950; Hoffer, 1951; Janis, 1981; Jetten &

Hornsey, 2010; Kruglanski, 2004; Packer, & Chasteen, 2010; Schachter 1951; Klar & Baram,

2014).

While developing their identities as members of society, individuals also acquire the shared

beliefs of the ethos. Societies make a special effort to impart the beliefs of the ethos to its

members, as part of their social identity. As a result, societal beliefs of the ethos are shared, to a

great extent, by majority of members of society. This process can be viewed as an indicator of

societal integration and social cohesion (Epstein, 1978; Bar-Tal & Oren, 2000).

Shared Emotions

Although emotions and their expressions are deemed a universal phenomenon, emotions are

influenced and constrained by cultural norms, values, beliefs and vocabularies (Turner & Stets,

2005). In the last two decades social scientists have proposed the idea that groups can share

emotions on the basis of shared beliefs that evoke particular feeling or emotion (Gordon, 1990;

Lazarus, 1991; Mesquita & Friijda, 1992). Society provides contexts, information, models,

emphases, and instructions that influence its members' emotions. Because emotions can become

cultural frameworks shared by society members and, as such, have strong effects on the

members, emotional experiences have become a societal phenomenon, taking the form of

collective emotional orientation (Rimé & Christophe, 1997). Collective emotional orientation

refers to societal characterization of an emotion that is reflected on individual and collective

level in socio-psychological repertoire, as well as in tangible and intangible societal symbols

such as cultural products or ceremonies (Bar-Tal, 2001, 2013; Bar-Tal, Halperin, & de Rivera,

2007). Markus and Kitayama (1994) pointed out:

19

[E]very cultural group has some key ideas that have been traditionally and collectively held in

place and that are used to select and organize their socio-psychological processes. These core

cultural ideas can influence the nature of the group‘s habitual emotional tendencies through

constraining and affording particular, relatively culture-specific sets of immediate and everyday

life realities, in which members of the cultural group are socialized or “trained” to think, act, and

feel in more or less adaptive fashion (pp. 341, 343)

Group emotions may include fear, hatred, guilt, hope, and security. Societies involved in

intractable conflicts are dominated by a collective emotional orientation of fear, which enables a

society member to cope with a highly stressful and demanding situation (Bar-Tal, 2001),

stemming from the prolonged and violent nature of these conflicts.

According to social identity theory (Tajfel & Turner, 1986), people are motivated to perceive

their ingroup positively. For example, when the ingroup has acted in a manner deemed morally

unacceptable—either in the past or present—people may engage in a variety of group-protective

strategies which are aimed at alleviating the aversive experience of guilt that stems from a shared

group membership with the harm-doers (Wohl, Branscombe & Klar, 2006). Fear and other

negative emotions can also provide triggers for action: Violence can erupt from a combination of

collective fear, anxiety, sadness, and anger (Neal, 1998, 2005). Negative intergroup emotions

play a crucial role in decisions that perpetuate violent conflicts (Halperin, Sharvit, & Gross,

2011; Horowitz, 2000; Petersen, 2002); they can mobilize public support for aggressive action

(Cheung- Blunden & Blunden, 2008; Huddy, Feldman, & Cassese, 2007; Lerner, Gonzales,

Small, & Fischhoff, 2003; Skitka, Bauman, Aramovich, & Morgan, 2006) and hinder progress

toward conflict resolution and peace (Halperin, 2011; Maoz & McCauley, 2005).

The following section will present the building blocks of intractable conflicts, elaborating on the

conceptual framework that will serve the present study.

20

Intractable Conflicts

Conflicts are an integral part of every intergroup relationship and innate to the human condition

but differ in their intensity and duration. Yet some conflicts are more enduring and intensive than

others; these are referred to by conflict resolution scholars as ‘intractable’ conflicts. As noted

above, intractable conflicts, which represent the most extreme position of the tractability-

intractability dimension of conflict analysis, are defined as being total in nature, violent and of

zero sum nature, perceived as irreconcilable by the members of the societies involved in the

conflict, lasting at least a generation, involving all society members and requiring great personal

investments (Bar-Tal, 1998b; Kriesberg, 1998), experienced by the majority of society members

as extremely threatening and generating undesired negative emotions such as fear and stress

(Cohen, 1979; Lieberman, 1964). Intractable conflicts are perceived by members of the society

as resulting from contradictory goals and interests that are considered essential for the group’s

survival (Azar, Jureidini, & McLaurin, 1978; Azar, 1990; Goertz & Diehl, 1993; Kriesberg 1993,

1998; Coleman, 2006; Oren & Bar-Tal, 2006). As noted by Bar-Tal, all features which define

intractability of conflict may evolve at their own pace of development. Yet once all of them

appear, intractability begins. Only when all the seven features emerge in their extreme form, the

intractable conflicts appear in their most extreme nature (Bar-Tal, 2007a, 2013).

Members of society who face an intractable conflict have to cope with significant challenges

which are manifested not only individually but also influence society. This not only involves

mobilizing resources but also demands the creation of united support for the conflict goals,

solidarity, and readiness for sacrifice. This requires formation of shared socio-psychological

repertoire of beliefs, attitudes and emotions that often creates ‘tunnel vision’ and thus precludes

absorption of incongruent information and alternative approaches to the conflict (Jervis, 1976;

Vertzberger, 1990; White, 1970; Jost, Glaser, Kruglanski & Sulloway, 2003). It was suggested

that it serves as a psycho-social barrier, preventing peace from gaining popular support (Bar-Tal,

2002; Halperin and Bar-Tal, 2011). The fundamental premise is that after the socio-

psychological repertoire crystallizes into a well-organized system of societal beliefs of collective

memory and ethos of conflict, with the emotions of the collective emotional orientation, and

penetrates institutions and communication channels of the society, in the next phase, a culture of

21

conflict develops. But first I will describe the nature of ethos of conflict as a foundation of

culture of conflict.

The significance of defining a conflict as intractable also stems from the marked difference

between the levels of resistance to resolution as compared to other national or international

conflicts: As noted by Coleman, hope of resolving intractable conflicts should be based on

prevention, as “intractable conflicts usually have a long history of escalation prior to reaching

crisis and entrenchment” (2006, p. 557). While this may seem to be a purely academic

observation, research regarding present day conflicts suggests that almost all are both ongoing

and repeated: 90 percent of the civil wars during first decade of the twenty-first century occurred

in countries that had already experienced civil war in the last 30 years (The World Bank, 2011).

Many of these conflicts are likely to attain intractable status. It is for this reason that the concept

of intractability (or tractability) of conflicts is highly significant and should encourage

international community to tend to the many prolonged yet still tractable conflicts as many of

them are gradually becoming intractable.

Ethos of Conflict

Under conditions of intractable conflict, a unique ethos of the conflict evolves, providing

members of societies involved in the conflict with a clear picture of the conflict, its goals, its

conditions, its requirements, the self-images of one own group and an image of the rival group.

The narrative of the ethos of conflict is supported by the narrative of collective memory and in

both narratives similar themes emerge.

The following eight themes are suggested as appearing in the ethos of conflict (Bar-Tal, 1998,

2007, 2013). These themes were observed following an extensive and systematic study of Israeli

Jewish society as a society involved in intractable conflict (Bar-Tal, 2007a; Oren, 2009). In

addition, the themes were found to be dominant in other societies engaged in intractable conflict

such as Serbs, Kosovars, Albanians, Croats, and Bosnians (MacDonald, 2002), among Hutus in

Rwanda (Slocum-Bradley, 2008; Staub, 2006), and among Greek and Turkish Cypriots

(Hadjipavlou, 2007; Papadakis, 1998, 2008).

22

1. Societal beliefs about the justness of one's own goals, first of all, outline the goals in the

conflict, indicating their crucial importance and providing their explanations and rationales.

Every society has goals and they must be perceived as justified by society members; otherwise,

they would not act collectively to achieve them. But in a situation of intractable conflict, the

justification and rationale play a crucial motivating role because of the sacrifices demanded from

the collective, including sacrifice of life. In addition, the societal beliefs negate and delegitimize

the goals of the other group. These beliefs motivate society members to struggle and fight for

their goals, and help them endure the sacrifices, losses, stress and costs of the conflict.

2. Societal beliefs about security refer to the importance of personal safety and national survival,

and outline the conditions for their achievement. In the context of intractable conflict, beliefs

about maintenance of security in its widest terms, including military mobilization, volunteerism

and heroism are of special importance. These beliefs are essential when the intractable conflict

involves violence in the form of acts of hostility and war, and poses threats to the lives of

individuals, collective existence, economic well-being, and even to central values.

3. Societal beliefs of positive collective self-image pertain to the ethnocentric tendency to

attribute positive traits, values and behavior to one's own society (Hirshberg, 1993; Kaplowitz,

1990). In times of intractable conflict, characteristics related to courage, heroism, or endurance

and, on the other hand, characteristics related to humaneness, morality, fairness, trustworthiness

and progress are propagated with special intensity. The enemy is presented in stark contrast,

allowing for a clear differentiation between the two parties (Sande, Goethals, Ferrari, & Worth,

1989). Moreover, these beliefs supply moral strength and a sense of one's own superiority.

4. Societal beliefs of own victimization involve self-presentation as a victim, especially in the

context of the intractable conflict (Mack, 1990; Volkan, 1997). The focus of these beliefs is on

the unjust harm, evil deeds and atrocities perpetrated by the adversary. They provide the moral

incentive to seek justice and to attack the opponent, as well as to mobilize moral, political and

material support from the international community.

23

5. Societal beliefs of delegitimizing the opponent refer to beliefs which deny the adversary's

humanity (Bar-Tal & Hammack, 2012; Bar-Tal & Teichman, 2005; Holt & Silverstein, 1989;

Moses, 1990; Rieber, 1991). Through dehumanization, extreme negative trait characterization,

outcasting use of negative political labels and negative group comparisons, a society places the

opponent "into extreme negative social categories which are excluded from human groups that

are considered as acting within limits of acceptable norms and/or values" (see Bar-Tal, 1989, p.

170; Bar-Tal, 1990). Delegitimation of the opponent has been found to be a prominent part of the

ethos of the Israeli society as a side to an intractable conflict. These beliefs explain the causes of

the conflict's outbreak, its continuation and the violence of the opponent. They also justify one's

own hostile acts against the rival group. De-legitimization is considered one of the key

psychological aspects of the Israeli-Palestinian conflict (Kelman, 1999).

6. Societal beliefs of patriotism generate attachment to the country and society, by propagating

loyalty, love, care and sacrifice (Bar-Tal & Staub, 1997; Somerville, 1981). Patriotic beliefs

increase social cohesiveness and dedication, and serve an important function for mobilizing

society members to active participation in the conflict, and endurance of hardship and

difficulties, to the point of sacrificing their lives for the society.

7. Societal beliefs of unity refer to the importance of ignoring internal conflicts and

disagreements during intractable conflicts in order to unite forces facing the external threat.

These beliefs strengthen the society from within, develop a consensus and a sense of belonging,

increase solidarity, and make it possible to direct society's forces and energy towards coping with

the enemy.

8. Finally, societal beliefs of peace refer to peace as the ultimate desire of the society. They

present peace as an ultimate goal of the society, and society members as peace loving. Such

beliefs inspire hope and optimism. They strengthen positive self-image and positive self-

presentation to the outside world.

At the climax of the intractable conflict, beliefs are often shared by the great majority of society

members, but the extent of sharing may change with the changing nature of the conflict. The

24

extent of sharing also depends on various societal and political factors such as the openness of

the society to information, and the availability of alternative information, and therefore societies

may differ in the measure to which members share the societal beliefs of conflict (Bar-Tal &

Salomon, 2006).

Societal beliefs of ethos of conflict perform a social function, allowing society to adapt to the

everlasting, stressful and demanding conditions created by the intractable conflict. Yet they also

contribute significantly to the continuation of the conflict: Societal beliefs are, in many respects,

mirror images of the beliefs of the other society involved in the conflict. Both societies which are

opposing sides to an intractable conflict evolve societal beliefs regarding justness of the conflict,

delegitimization and victimization. Societal beliefs regarding justness refer to the affirmation of

one's own goals and negation of those of the rival. Societal beliefs of delegitimization and

victimhood serve as a mirror image in their content. Often the groups use similar labels for

delegitimization, but view themselves as the ultimate victims of the conflict (Oren, Bar-Tal, &

David, 2004). These central societal beliefs of ethos of conflict provide the prism through which

society members view their world and relate to it. This prism not only organizes society's

cognitive outlook or directs intentional forms of actions, but also sets its collective emotional

orientation (Bar-Tal, 2001).

Societal beliefs of ethos of conflict serve as barriers preventing penetration on the individual and

collective level of information that may contradict these beliefs (Bar-Tal and Halperin, 2011).

The societal beliefs of ethos of conflict freeze on an individual level (Kruglanski, 2004;

Kruglanski & Webster, 1996). The state of individual freezing is evidenced by the continued

reliance on the held societal beliefs that support the conflict, the reluctance to search for

alternative information and resistance to persuasive arguments which contradict held positions.

This freezing process is fed by structural, motivational and emotional factors that cause the

conflict supporting beliefs to become rigid. Rigidity implies that the societal beliefs are resistant

to change, and are organized in a coherent manner with little complexity and with great

differentiation from alternative beliefs (Tetlock, 1989; Rokeach, 1960). This rigidity constitutes

an important foundation for the barriers against contradicting information because it ensures that

the contents of the societal beliefs supporting the conflict do not change easily but are

25

maintained even when the most convincing alternative arguments that suggest peaceful

resolution of the conflict are presented (Bar-Tal & Halperin, 2011).

In addition, on societal level, societies involved in intractable conflict very often actively make

efforts to maintain the conflict supporting societal beliefs and prevent penetration of alternative

beliefs that may undermine this dominance, and even when they do penetrate, they are rejected

(Bar-Tal, 2011; Horowitz, 2000; Kelman, 2007). Societies use various societal mechanisms to

block the appearance and dissemination of information that provides an alternative view of the

conflict, of the rival, of their own group and/or of the conflict’s goals: alternative information

that humanizes the rival and sheds a new light on the conflict; that suggests that goals can be

compromised; that there is partner on the other side with whom it is possible to achieve a

peaceful settlement of the conflict; that peace is rewarding, while the conflict is costly; that

continuation of the conflict is detrimental to the society; and that may even provide evidence that

the ingroup is also responsible for the continuation of the conflict and has been carrying out

immoral acts.

Moreover, since the repertoire is indoctrinated in the early years of childhood via societal

institutions and channels of communications, it may be assumed that almost the entire younger

generation absorbs the contents of the conflict supporting beliefs (i.e., collective memory and

ethos of conflict). In addition, during childhood most members of this generation probably

accept the conflict supporting beliefs as valid and truthful. When the peace process begins and

progresses, at least some of them may acquire alternative beliefs which promote this process.

However, research findings reveal that even when society members acquire alternative beliefs

and attitudes supporting peacemaking, the repertoire learned at an early age continues to be

stored in mind as implicit beliefs and attitudes and influences their functioning (Sharvit, 2008;

Bar-Tal & Halperin, 2011). Thus, the significance and dominance of ethos of the conflict

become more evident when compared to alternative beliefs.

A psychological process termed ‘collective amnesia’, the limited ability of a society, which is a

side to an intractable conflict, to discuss and consider beliefs deemed contradictory to its

hegemonic worldview, is a reflection of its destructive potential regarding society’s adherence to

26

conflict goals, mobilization for participation in conflict and positive self-image (Baumeister &

Hastings, 1997; Maksudyan, 2009; Tint, 2010; Winter, 2010; Bar-Tal, 2013). Some researchers

also note that receiving contradictory information impedes society members’ perception of the

conflict as being intractable (Baumeister & Hastings, 1997; Langenbacher, 2010; Tint, 2010;

Bar-Tal, Oren, & Nets-Zehngut, 2013).

Together with ethos of conflict, societies maintain a collective memory of conflict. Both

elements complement each other, interact, feed each other and have similar themes.

Collective memory

Collective memory is defined as widely shared knowledge about past social events that may not

have been personally experienced, but are collectively constructed through communicative social

functions (Schuman & Scott, 1989). Representations of the past are distributed and emerge

through interactions among members of the group, including institutionally mediated interactions

like public education or commemoration (Wertsch, 2002). These social representations or shared

knowledge about the past are elaborated, transmitted and conserved in a society through both

interpersonal and institutional communications (Paez & Liu, 2011). Collective memory is

entrenched in the particular socio-political-cultural context that imprints its meaning. Connerton

points out that "our experience of the present very largely depends upon our knowledge of the

past. We experience our present world in the context which is causally connected with the past

event and objects" (1989, p. 2).

Collective memory as a narrative is biased, selective and distorted, all in an effort to fit societal

goals. The narrative omits certain facts, creates "facts" that have not taken place, changes the

accounts of events and makes purposive interpretation of the events that have occurred (Bar-Tal

& Salomon, 2006). This narrative reflecting the collective memory is passed down from one

generation to another and is evident in the cultural products such as literature, myths, or songs.

But like any memory, these memories undergo transformation and shaping, so ultimately they

are subjective interpretations of events. It is these interpretations that become the system of

shared beliefs, but they are accepted as an objective, “truthful” account of historical events. This

27

account or narrative not only justifies and legitimizes intergroup conflict but also comes to

solidify a positive image of the in-group (Bar-Tal, 2007).

Collective memory of conflicts has a motivational function for collective behavior, as it

stimulates groups to act collectively, and justify actions of the in-group toward the out-group

(Liu & Hilton, 2005). As noted by Paez and Liu, “In all types of cultures, people have

mythologized their own war dead, and forgotten their out-group victims. Because societies tend

to remember their own heroes and soldiers and forget their crimes and misdeeds, social

representations of history can feed violent conflicts, where there is rumination on in-group

suffering that represents the national in-group as a victim, and where the target out-group” (2011,

pp. 118-9). Collective memories include historic incidents such as when a group was victimized

by out-groups. A sense of self-perceived collective victimhood emerges as a major theme in the

ethos of conflict of societies involved in intractable conflicts and as a fundamental part of

collective memory of the conflict. This sense is defined as a mindset shared by group members

that results from a perceived intentional harm with severe consequences inflicted on the

collective by another group. This harm is viewed as undeserved, unjust, and immoral and one

that the group could not prevent (Bar-Tal, Chernyak-Hai, Schori & Gundar, 2009). As noted by

Staub & Bar-Tal (2003): “Groups encode important experiences, especially extensive suffering,

in their collective memory, which can maintain a sense of woundedness and past injustice

through generations” (p. 722). Volkan’s discussion sheds further light on the roles and functions

of collective victimhood perceived by society as part of their collective memory (1997): While

such a perception solidifies society, it also creates a "Faustian pact" in which society, engulfed

by a sense of victimhood and powerlessness, is nevertheless bonded together through the

collective mental image of a past event.

After describing the nature of ethos of conflict and collective memory of conflict we are ready to

move one step further and suggest that they serve as foundations of a culture of conflict, a culture

that evolves in societies engaged in a prolonged intractable conflict.

28

Culture of Conflict

A culture of conflict develops when societies saliently integrate elements of their socio-

psychological repertoire into cultural tangible and intangible symbols, which consequently

communicate a particular meaning about the experiences of living under a prolonged and

continuous conflict (Bar-Tal, 2013; Geertz, 1973; Ross, 1998). These symbols become

hegemonic cultural elements: They provide a dominant meaning about the present reality, about

the past, and about future goals, guiding conduct and thought (Bar-Tal, 2013). The culture of

conflict is manifested in particular societal beliefs which have been associated with collective

memory, collective emotional orientation, as well as ethos of conflict, which serve as basis for

the formation of social identity (Ashmore, Jussim, & Wilder, 2001; Cash; 1996; Oren, Bar-Tal,

& David, 2004; Bar Tal, 2007a; Ross, 2001; Worchel, 1999).

Culture of conflict indicates that the socio-psychological repertoire becomes an inseparable part

of the political, societal, cultural and educational institutions in which society members live,

thereby forming a dominant repertoire (Ross, 1993). In essence, the culture of conflict permeates

all domains of individual and collective life (Kimmel, 2006). The repertoire of culture of conflict

is not only widely shared by society members but also appears to be dominant in public

discourse via societal media channels of mass communication. Moreover, it is often used as

justification for leaders' decisions and policies. The socio-psychological infrastructure is

expressed in cultural products such as literary books, TV programs, films, the theatre, visual arts,

monuments, and other products such as institutional ceremonies and the educational system from

kindergartens to academia. The latter building block is of special importance because the beliefs

presented in the educational textbooks reach all of the younger generation (see Bar-Tal, 2007b

for an extensive analysis of the Israeli Jewish society as an example). The existence of a culture

of conflict suggests that the repertoire of conflict is widely disseminated, is viewed and

deciphered by the overwhelming majority of members of society and thus has acquired

hegemonic dominance (Bar-Tal, 2013).

29

Israeli Society as a Side to an Intractable Conflict

The following paragraphs will discuss some of the most important aspects of the socio-

psychological mechanisms and processes which influence the Israeli Jewish society as a side to

an intractable conflict.

Ethos of Conflict in the Jewish Israeli Society

Both Israeli Jewish and Palestinian societies have developed an ethos of conflict, as have other

societies involved in intractable conflicts (Bar-Tal, 2007, 2007a; Bar-Tal & Halperin, 2011,

Shaked, 2015). The Israeli-Palestinian conflict is maintained through the reproduction of

polarizing elements of reproduced narratives (Hammack, 2008, 2010; Kelman, 2007; Rouhana &

Bar-Tal, 1998). In the case of Israeli Jewish society, the conflict ethos has become

institutionalized and widely disseminated through various social institutions such as schools and

the popular media (Bar-Tal, 2007a).

In the particular context of the conflict with the Palestinians, the ethos of the conflict of Israeli

Jewish society allows it to cope with the challenges posed by the prolonged Israeli-Arab conflict.

These challenges are expressed on an individual as well as on a collective level. The ethos has

also enabled Jewish society to cope with the occupation of the West Bank, the Gaza Strip, the

Golan Heights and Sinai following the 1967 war (Bar-Tal, Halperin, Sharvit, Rosler, & Raviv,

2008). The central psychological challenge of an occupying society is resolving the

discrepancies between the motivation to maintain positive self-esteem and the immorality of the

occupation. Bar-Tal and colleagues note that the role of the occupier therefore inevitably leads to

the use of societal beliefs which figure prominently in the ethos of conflict, and which make it

possible for the Israeli public to deal with a reality that may be considered illegal and immoral

(see also Halperin, Bar-Tal, Sharvit, Rosler & Raviv 2010).

The overwhelming majority of Israeli Jewish society shares the ethos of conflict beliefs,

regardless of their political orientations. The ethos of conflict has continued to influence the

psychology of the majority of Israeli Jewish society: It is automatically activated by relevant

30

stimuli, and its activation increases in response to stress and affects the processing of novel

information (Sharvit, 2008, 2014). The evidence for automatic activation and high accessibility

of the ethos of conflict suggests that it might become a 'default mode' of operation for Israeli

Jews, affecting their decisions and behaviors regarding the conflict in ways that are not always

readily apparent (Bar-Tal, Raviv, Raviv & Dgani-Hirsh, 2009; Sharvit, 2014).

Research conducted mainly in the last decade has provided ample evidence of the extensive

influence of the ethos on Israeli society. For example, Jewish members of Israeli society have

developed beliefs that deny Arab humaneness: Arabs are perceived as primitive, bloodthirsty,

murderous, cruel, and vicious. While during the period of the Oslo agreements, the

delegitimization of the Arabs somewhat decreased, the Al-Aqsa Intifada brought back the

patterns of delegitimization observed in previous studies (Bar-Tal & Sharvit, 2008; Bar-Tal &

Teichman, 2005; Bar-Tal, Raviv, Raviv & Dgani-Hirsh, 2009). Research about views of the

Palestinians in Palestinian-Israeli encounters found that the Israeli participants' reaction towards

the Palestinians was influenced not by the actual contact with them, but rather by the level of

adherence with the ethos of the conflict found for each participant before the meetings began

(Bar-Tal, Raviv, Raviv & Dgani-Hirsh, 2009).

The analysis of the Jewish ethos of conflict in Israel points to the special status of the societal

beliefs regarding security. These societal beliefs play a central role in the functional aspects of

the ethos by justifying various decisions, policies and courses of actions. These beliefs originate

from a lack of security which has become part of the Jewish identity in Israel and a distinctive

feature of Israeli Jewish culture (Bar-Tal, Jacobson & Klieman, 1998). They are manifested by

'securitism', a term used by Bar-Tal, Magal and Halperin to express the perception prevalent

among Israeli Jewish society of the supreme significance of the military and of militarism (Bar-

Tal, Magal & Halperin, 2009).

Bar-Tal notes that security is an all-encompassing symbol of the Israeli Jewish ethos, reflecting,

in part, the insecurity felt by Jews in the context of the conflict (2007). The significance of

security as a Jewish Israeli societal belief of the ethos can be regarded as an expression of the

adoption of a conservative, militant ideology, which researchers have found (in general) to be

31

effective in facilitating coping with highly threatening situations (Altemeyer, 1990; Doty,

Peterson & Winter, 1991; Duckitt & Fisher, 2003; Willer, 2004). These findings are consistent

with the basic premises of research regarding the uncertainty-threat model (Jost, Glaser,

Kruglanski & Sulloway, 2003; Jost & Hunyady, 2005), which posits that the need to reduce

uncertainty and threat is best served by embracing conservative ideologies because they offer

comparatively simple, yet cognitively rigid, solutions to questions of security. According to this

conception, conservative political ideas are hypothesized to be adopted, not because of their

particular logic, but because they provide comfort for those who are made particularly anxious

by change and instability (Jost et al., 2003). Indeed Bar-Tal, Sharvit, Halperin and Zafran (2012)

not only viewed ethos of conflict as a conservative ideology but also showed how it reflects

conservative personality tendencies.

Similarly, scholars of Israeli society have noted that it presents signs of social regression by

creating a sharp ‘us’ and ‘them’ division, or Jews as opposed to Arabs, severely limiting the

chances to reach a peaceful resolution of the Israeli-Palestinian conflict (Bar-Tal, Halperin &

Oren, 2010; Magal, Bar-Tal & Halperin, in press; Weinberg & Nuttman-Shwartz, 2006). Israeli

society has adopted a zero sum game mentality in which one side's win is the other side's loss

(Oren, Bar-Tal, & David, 2004). The Israeli society collective self-identity is defined as a

negation of the Palestinians, who are perceived as an 'Other' - a threat to Israel's continued

existence. By developing the perception of the Palestinians as the all-negative 'Other', the Israeli

society has been able to create a monolithic identity for what was, in the early days of the State

of Israel, a fractured, immigrant, traumatized and deeply divided and fragile collective of

individuals, sharing little but religion. In order to create a society which can defend itself against

its enemies in a very short time, Israeli political leadership has defined the Palestinian 'Other' as

an 'ultimate evil' or even as semi-Nazis (Zertal, 2002), enabling the emerging Israeli Jewish

society to create an untarnished collective self-image (Bar-On, 2005).

32

Main clusters of societal beliefs of the Israeli ethos of conflict

As noted by Oren and Bar-Tal (2006), eight themes of the conflictive ethos gave Israeli Jewish

society its dominant orientation in the context of the intractable conflict, both before the

establishment of the state and during the first twenty-seven years of its existence.

Societal Beliefs about the Justness of the Israeli Goals

This theme concerns the rationale behind the goals that led to the conflict, and particularly the

justification of these goals in terms of their importance. The Jews’ return to Eretz Israel (the land

of Israel), with the aim of establishing their own state after 2000 years of exile, was inspired by

the nationalist ideology of Zionism. This ideology provided Jews both with goals and a

justification for them (Avineri, 1981; Vital,1982). These goals centered first on the establishment

of a Jewish state in the ancient homeland of Eretz Israel. Historical, theological, national,

existential, political, societal, and cultural arguments were used to justify these goals. They

included arguments such as the following: that the Jewish nation was founded in the ancient

Land of Israel; that during many years of ancient Jewish history the land of Israel was the Jews’

homeland; that during their exile Jews maintained close spiritual and physical ties with the land

of Israel, continuously aspiring to return to it; that the continuity of Jewish life never ceased in

the land; and that the persistent experience of anti-Semitism in the diaspora, with the Holocaust

climax, highlighted the Jewish people’s need for a secure existence in their old homeland. The

conquest of the Sinai, the Gaza Strip, the West Bank, and Golan Heights in the 1967 war greatly

augmented the territorial dimensions of the Israeli goals. In the aftermath of the war, many

Israeli Jews believed that Israel had the right to retain these territories. Their shared beliefs

pertained to the Jewish people’s exclusive rights to Judea, Samaria (i.e., the West Bank), and the

Gaza Strip and to the security importance of the Golan Heights, parts of the West Bank, and the

Sinai (Bar-Tal & Salomon, 2006).

In the context of justifying these Israeli goals, attempts were made over the years to refute

Palestinian claims. The contested territory was often described as being sparsely populated by

Arabs who, moreover, had only moved there in recent centuries. The Palestinian national identity

33

was also denied; it was claimed that they were Arabs, part of the Arab nation, and that their

national Palestinian identity was a relatively new development. Finally, Palestinian claims of

attachment to the land were questioned by describing the land as desolate, neglected, swampy,

and desert-like—until the Jews’ came back to cultivate it. Then Arabs returned (Bar-Tal &

Salomon, 2006).

These societal beliefs motivated the members of Israeli Jewish society to fight for their goals and

to endure the stresses, sacrifices, and costs of intractable conflict.

Societal Beliefs about Security

The need to achieve ‘existential’ security has underlined the aspirations of Zionism and has been

found by researchers to be the most central need and value of Israeli society (Bar-Tal, Jacobson,

& Klieman, 1998; Yaniv, 1993). Security is a cultural master-symbol of the Israeli Jewish ethos

(Horowitz, 1984; Liebman & Don Yehiya, 1983) as the Israeli society has become a nation in

arms or a nation in uniform, living a "dormant war" (Horowitz, 1993). Security has played a

crucial role in many significant governmental decisions, receiving preference over other

concerns. It has become a rubber stamp, justifying laws as well as economic, legal, social,

educational, and even cultural policies (Bar-Tal, 2000; Bar-Tal, Jacobson, & Klieman, 1998;

Kimmerling, 1993; Perlmutter, 1969).

During the intractable conflict, the Israeli Jews have always believed that the security of the

country and of its Jewish citizens were under serious threat (Arian, 1995; Stein & Brecher, 1976;

Stone, 1982). Assigning the highest priority to the value of security, the society has done all it

could to motivate its members to serve in the armed forces, and to encourage the best qualified to

volunteer for the most important institutions and units (e.g., the air force, the commando units,

the Mossad, or the General Security Services). All channels of communication and agents of

socialization have paid tribute to the security forces. (Lissak, 1984). Service in the Israeli

Defense Forces (IDF) was viewed as an entrance ticket into Israeli society, and refusal or evasion

of service was socially frowned upon. Those who volunteered to serve in special institutions or

units were accorded high prestige. The top-ranking officers were ascribed a special status that

34

allowed them not only to act as epistemic authorities on a wide range of issues, but also to be

accepted into any field upon retirement, including politics, industry, business, the civil service,

and even cultural institutions and education (Peri, 1983). At the same time, a legacy of wars and

battles was developed and heroism was glorified. Military heroes received special honors, and

society commemorated those who had fallen in military service, gave financial support to their

families, and aided those who had been injured in the line of duty (Bar-Tal, Jacobson, &

Klieman, 1998).

The fundamental societal beliefs of the ethos delineated the conditions that were assumed to

ensure security. First, Israel had to build mighty military strength of the highest quality to deter

Arab aggression. Second, Israel had the right and duty to defend itself against threats by means

of its own armed forces, and even to initiate military acts, including wars to prevent possible

Arab attacks on Israel. Third, Israel should not rely on help from foreign military forces or be

dependent on international public opinion or the views of foreign leaders and international

organizations (e.g., the UN). Fourth, land was regarded as the country’s important national

strategic asset.

In sum, the societal beliefs were functional for the violent confrontations of the conflict, since

they assigned a high priority to security, provided a rationale for societal decisions and actions,

and motivated members of society to participate in the conflict and accept and cope with

stressful conditions.

Societal Beliefs about Positive Collective Ingroup-Images

The societal beliefs of positive collective ingroup images involve the attribution of positive traits,

values, intentions, and behaviors to one’s own society. Israeli Jews viewed themselves as “new

people,” reborn in the land of Israel (Hofman, 1970). Positive stereotypes presented them first as

tenacious, hard-working, courageous, modern, and intelligent, and second as moral and humane.

With respect to the first set of traits, various stories and myths were amassed about the Jews’

behavior in times of peace and war, while the second group of traits referred to Israeli Jews’

behaviors toward Arabs. Positive ingroup presentation also invoked the Jewish heritage. Jewish

35

culture, religion, and traditions were regarded as lying at the heart of Western civilization and

morality. There were also segments of society who thought that Jews were the “chosen people”

and a “light unto the nations.” These beliefs provided moral strength and feelings of self-worth.

Societal Beliefs about One’s Own Victimization

These beliefs are about self-view as the victim of the conflict and of unjust Arab aggression.

They are associated with the beliefs concerning a positive ingroup image and the

delegitimization of Arabs. Their beliefs about victimization were greatly reinforced when,

following the establishment of the state of Israel, Palestinians and the Arab states tried to

annihilate the new state, and continued to attack it. The wars that were fought, the Arab embargo

on trade with Israel, and the terrorist attacks on Israeli and non-Israeli Jews all confirmed to the

Israeli Jews their status as victims. These beliefs fitted in with the Jewish belief in their own

persecution (Bar-Tal & Antebi, 1992; Liebman, 1978).

During the conflict, the belief about victimization supplied the moral incentive to fight against

the Arabs, to seek justice, and to turn to the international community for moral, political, and

material support.

Societal Beliefs about Delegitimizing the Opponent

Intractable conflict fosters the evolution of negative stereotypes and especially societal beliefs,

which deny the adversary group—Arabs—its humanity. This process is called delegitmization.

Indeed, mutual delegitimization has been one of the bitter manifestations of the long years of

conflict between Israeli Jews and Arabs (Bar-On , 2000; Bar-Tal, 1988; Bilu, 1994; Kelman,

1999). For many decades, Israeli Jews referred to Arabs as a general category, without any

differentiation (Bar-Tal & Teichman, 2005). From the very beginning the encounters between

Jews, mostly from Europe, and Arabs, living in Palestine, fostered negative stereotyping

(Lustick, 1980). Arabs were given such labels as primitive, uncivilized, savage, and backward. In

time, as the conflict deepened and became more violent, Arabs were perceived as murderers,

bloodthirsty, treacherous, cowardly, cruel, and wicked. After the establishment of the state, these

36

delegitimizing beliefs about Arabs still prevailed and were transmitted through institutional

channels (Cohen, 1985; Domb, 1982; Segev, 1984). In addition, Arabs were blamed for the

continuation of the conflict, for the eruption of all of the wars and military clashes, and for

intransigently rejecting a peaceful resolution (Ben-Gurion, 1969; Harkabi, 1977; Landau, 1971).

Arabs were also characterized as striving to annihilate the state of Israel and to drive the Jewish

population into the sea. During the height of the intractable conflict from the 1940s to the 1970s,

all Arabs were perceived as one undifferentiated entity; all Arab nations were perceived to

display a uniform attitude toward the state of Israel. Only after the peace treaty with Egypt did

the Jews differentiate between Arab nations. This differentiation has continued to develop as

Israel has built separate relationships with different Arab nations. But the (over-generalized)

label “Arab” continues to be widely used until today, often with derogatory undertones.

Palestinians, who were identified as a differentiated nation only in the late 1970s, were perceived

as an enemy of the Jewish people and many of the delegitimizing terms were applied to them. In

fact, through the years they have been referred to as “Arabs.”

Societal Beliefs about Patriotism

During the intractable conflict, Israeli Jews made a special effort to convey beliefs that would

instill patriotism (Ben-Amos & Bar-Tal, 2004). In the context of the conflict, extreme sacrifices

were asked of Israeli Jews, including economic hardship and prolonged military service and

reserve duty. Patriotic beliefs called for various forms of dedication, including the settlement of

outlying or desolate areas, volunteering for the security forces, and working for society’s

welfare. These beliefs have even called for the ultimate sacrifice, the readiness to die, as part of

the violent confrontation with the Arabs, including Palestinians. Those who acted as models of

patriotism were glorified, while those who left the country (called “deserters”), or did not fulfill

their duties to the state (e.g., by not serving in the army) were stigmatized. Such patriotic beliefs

increased cohesiveness and played an important role in mobilizing the members of Israeli society

to actively participate in the conflict and to endure hardship and even loss of life (Elon, 1971).

37

Societal Beliefs about Unity

These beliefs have helped Israelis ignore internal disagreements and conflicts so as to unite

society in the face of external threats. Israeli Jewish society has striven to foster unity and build a

sense of belonging and solidarity by emphasizing beliefs about the need for unity. Common

tradition and religion were emphasized, and an attempt was made to minimize the ethnic

differences within a society whose members came from various parts of the world. Unity was

also reinforced by setting lines of agreement in the form of a “consensus” and those who

expressed opinions or exhibited behavior that did not fit the accepted consensus were frowned

upon (Smooha, 1978). Consensus pertained particularly to societal beliefs about the Arab-Israeli

conflict, and the justness of Israel’s goals and the means of ensuring security (Lahav, 1993;

Negbi, 1985).

Societal beliefs about unity strengthen society from within, augment the sense of commonality

and solidarity, and allow energy to be directed toward coping with the external enemy.

Societal Beliefs about Peace

These societal beliefs center on the society’s ultimate goal, i.e., peace. During the intractable

conflict with the Arabs, Israeli Jewish society has cherished peace as a value. Peace was

conceived of as a dream, a prayer, and a belief in utopian and idyllic images. Hence, Israeli Jews

have been stereotyped as peace-loving people forced by circumstances to engage in violent

conflict. They presented themselves as ready to negotiate and achieve peace, whereas the Arabs,

rejecting any peaceful resolution of the conflict and even refusing to have direct contact with

Jews, were seen as the sole obstacle to progress. Such beliefs inspired hope and optimism,

strengthened their positive self-image, and contributed to an empathic self-presentation to the

outside world.

The themes are widely shared by the great majority of society members, and are perceived as

characterizing the society (e.g., Liebman & Don- Yehiya, 1983; Oren, 2004; Zerubavel, 1995).

These beliefs have been used to justify society’s policies, decisions, and actions (e.g., Bar-Tal et

38

al., 1998; Yaniv, 1993).They have been maintained by societal, political, and cultural institutions

(e.g., Ben-Ezer, 1977; Cohen, 1985; Gertz, 1998; Govrin, 1989; Peri, 1998; Zemah 1995), and

transmitted to the new generations by the educational system (e.g., Bar-Tal, 1998b; Firer, 1985;

Podeh, 2002).

Changes in the Israeli Society's ethos of the conflict

Ethos societal beliefs are persistent by nature. For example, delegitimization, as an extreme type

of negative stereotyping, supplies rigid, persistent and durable categories that are unlikely to

change while the conflict lasts and even after the conflict’s resolution (Oren & Bar-Tal, 2007).

However, a study by Gayer et al. (2009) shows that exposure to information regarding losses

inherent in the continuation of the conflict induces willingness to acquire new information about

possible solutions to the conflict, willingness to re-evaluate current position, and support for

compromises. Additionally, unfreezing widely held societal beliefs that perpetuate the

continuation of the conflict is possible by introducing instigating beliefs which show

incompatibility between the desired future, on the one hand, and the emerging future and/or the

current state and/or the perceived past, on the other hand (see Bar-Tal & Halperin, 2013).

Societal beliefs can change when they cease to be perceived as valid, and can no longer fulfill the

needs of the members of society: New ideas may provide a better explanation of the present

reality, offer new perspectives on the past, and may even set new goals and aspirations for the

future. When the new ideas can fulfill the needs of the society members, they are perceived as

valid, providing new interpretations of the present experiences, and may become widely shared

in the society, gradually changing the social ethos. Eventually, some of these ideas may even be

perceived as central societal beliefs, contributing to a transformation in the social identity (Oren

& Bar-Tal, 2006).

In a somewhat similar manner, the ethos of Israeli society is constantly changing, adapting to the

changing circumstances of Israeli Jewish society: The ethos of the young Israeli Jewish society

during its formative years was not similar to that of the first decade of the twenty-first century.

Oren (2005, 2010) demonstrated these changes by analyzing surveys of public opinion between

39

1967 and 2000. The changes observed reflect the changed social conditions. The Arab-Israeli

conflict began as a violent communal conflict mostly between Jewish settlers and the Palestinian

local population living in British-ruled Palestine, and evolved into a full-blown interstate conflict

between Israel and Arab countries during the 1948-1949 war. Since 1967, following the Israeli

occupation of the West Bank and Gaza Strip during the 1967 war, the conflict has involved both

the interstate and communal levels (Sandler, 1988).

One of the most significant events to influence the ethos of the Israeli society occurred following

the visit to Jerusalem by Egyptian President, Anwar Al Sadat, in 1977. The peace treaty with

Egypt in 1979, the Madrid Conference in 1991, the agreements with the Palestinians in 1993 and

1994 and the peace treaty with Jordan in 1994 are watershed events in the peace process, and

they have greatly affected Arab-Jewish relations (Bar-Tal & Salomon, 2006). Up until 2000, the

conflict was losing its intractable characteristics. But by fall, 2000, the violence had re-erupted

and the conflict began to move again towards the intractable pole (Bar-Tal & Sharvit, 2008; Oren

& Bar Tal, 2006).

The following is a discussion of the temporal changes which have occurred to the Israeli Jewish

society ethos of the conflict during the research period – from 1948 until 2006. The research

period has been divided into four timeframes based on previous research (Oren, 2005, 2010;

Oren & Bar-Tal, 2006).

First Period: 1948-1970 – The hegemonic status of the ethos

The Israeli-Jews evolved an ethos of conflict during the late 1940s, 1950s, 1960s, and early

1970s that was functional for the demanding, stressful, costly, and prolonged situation: The

Israeli-Palestinian conflict has been violent almost from its beginning. The conflict started as a

communal conflict between the Jews and Palestinians living in British ruled Palestine: economic

boycotts, demonstrations, strikes and occasional violence erupted, which reached a climax in the

Palestinian rebellion of 1936-1939. The conflict evolved into a full- blown interstate conflict

between Israel and Arab states during the War of 1948-49 (Bar-Tal & Salomon, 2006).

Beginning with the early encounters with the Arabs, attempts to harm Jews physically, halt their

40

immigration, or prevent them from settling in the homeland were considered by Israeli Jews as

evidence of their victimization (Hareven, 1983).

Following the establishment of the State of Israel in 1948, and due to an escalation of the Arab-

Israeli conflict, the concept of ‘security’ was receiving priority over ‘settlement’. As noted by

Friling, Israeli social discourse emphasized nationalism, and the figure of the ‘fighter’ (soldier)

became dominant (2012). By the end of the 1948 war, the concept of the ‘fighter’ was deeply

engrained in the Israeli national consciousness (Cohen, 1995). Bar-Kochva and the fighters of

Massada became symbols of heroism, while little room was made for emotional expression of

fear or helplessness: Those who could not cope with the pressures of living under the conflict

were seen by Israeli Jewish society as traitors (Bar-On, 1997). During the same period, the

concept of “national security” became an expression of the need to guarantee the young state’s

survival (Lissak, 2001) and the need for security has been perceived as a manifestation of the

ongoing conflict with the Arab states (Horovitz, 1993; Lissak, 2001).

The events taking place before and immediately after the foundation of the State of Israel have

created a simplistic perception of the Palestinians, contributing to the formation of the Israeli

Jewish society ethos of the conflict. These events are perceived as examples of Arab violence

aimed at Jews. According to the accepted narrative, the Arabs rejected any compromise to settle

the conflict and in 1947 even rejected the UN decision to divide the country into two states -

Jewish and Palestinian; instead, they initiated a war against the Jewish minority, which drew in

seven additional Arab states that invaded the newly established State of Israel (Bar-Tal &

Salomon, 2006).

Second Period: 1970-1993 – The emergence of an alternative ethos

The Yom Kippur war of 1973, with its thousands of casualties, created a manifest crisis in the

national ethos of the Sabra (Bar-On, 1997).

In the early 1970s reservations and criticism began to be heard in the Israeli internal social

dialogue, challenging those hegemonic representations with criticism, using expressions like

41

“optional war” or “occupations and conquerors”, along with “the longing for peace” (Almog,

2004; Barzilay & Inbar, 1996; Ben- Eliezer, 2001; Peri, 2001).

There were new protest movements, plays and debates that were widely covered by the media

which became an important factor. All objected to any military action. It disseminated the

representations questioning the superiority of the military authority that until then had stifled any

attempt at criticism (Hadari, 1998). Those voices matched a new approach to the military and

national security developed in the Western world (Friling, 2012).

Halperin et ál. (2010) have noted that Israeli society underwent a process of moral degradation

due, in large part, to having fulfilled the functions of the occupying force in the Palestinian

Territories for more than forty years. These functions involved immoral acts especially against

non-combatant Palestinian civilians. Consequently, Israeli Jewish society is at a risk of

unmitigated exposure to negative feelings of shame and guilt which are generated in such

circumstances. Therefore, the societal beliefs of the ethos are deployed to provide defense

against the risk of being exposed to negative emotions about our state, Israel, which are

damaging our ability to feel morally just, as members of an occupying society.

Third Period: 1993-2000 – The Oslo process period

Changes in Israeli Jewish society self-identity provided a significant contribution to the

mechanisms and conditions that made the Oslo accords possible. Pruitt (1997), who studied the

Oslo accord from the readiness theory perspective, shows several psychological conditions that

enabled this process from the Israeli side. According to Pruitt, motivational ripeness – the desire

to end the conflict – had been growing in Israel in the period just before the negotiations, as a

result of the perceived high cost of the Intifada and growing concerns about the rise of Islamic

militant groups and states. Indeed, the current study shows that, before Oslo, both parties

emphasized the military threat from unconventional weapons in the hands of militant Muslim

states, such as Iran (Oren, 2010).

42

The Oslo peace process heightened tensions that were growing in Israeli Jewish society for

decades before, reflecting deep disagreement regarding the occupation of the Palestinian

Territories. While some saw the benefits of the Oslo peace treaty, others regarded it as a

“national disaster” (Friling, 2012). According to Bar-On, the Oslo process has caused a severe

crisis of identity for Israeli society as this was the first time in recent times that Jewish identity

might not center around the struggle with enemies, around the struggle for survival (Bar-On,

1997). With the Oslo agreement, the de-legitimizing views somewhat changed and became more

differentiated, but the eruption of the second intifada brought back the de-legitimizing labels

(Bar-Tal, 2004).

Fourth Period: 2000-2006 – Regression

The collapse of the Israeli-Palestinian peace process, which resulted, in part, from Arik Sharon's

landslide win (by more than 62 percent of the vote) in the Special Elections of February 2001,

may be a testimony to the difficulty of changing the ethos of conflict and imparting new ideas

about the possibility of attaining peace. As noted by Bar-Tal et al., years of indoctrination have

left their mark and any cue that reminds the societies about their past conflict easily arouses the

opposing societal beliefs that fuel the conflict: Fear, hatred and mistrust easily reappear, while

trust and sensitivity to the other’s needs, and personalization of the other's image are built over a

long period of time and need a supporting context of intergroup relations in order to take root in

the society and gradually to supersede the existing societal beliefs (Bar-Tal, Halperin & Oren,

2009; Oren, Bar-Tal, & David, 2004).

A survey conducted by the Tami Steinmetz Center for Peace Research (Herman & Yaar, 2004)

found that forty percent of Israel’s Jewish population does not oppose a proposition to remove

Arabs from Israel. Reactions such as, “Kill them,” and “Expel them,” have been received by

university lecturers and teachers who interact with Israeli Jewish students, who raised the topic

of the status of Israeli Arab citizens (Bar-On, Litvak-Hirsh & Othman, 2007). The radicalization

of the views of the Israeli Jewish society has coincided with tangible changes in the views and

beliefs of the Israeli Arabs; The killing of thirteen Arabs by the Israeli police force during the

October 2000 protests in Arab-Israeli villages; the conclusions and recommendations of the Orr

43

Investigative Committee and governmental non-implementation of these conclusions, coupled

with Israeli army operations in Lebanon, the West Bank and the Gaza Strip, have further

radicalized viewpoints among Israeli Arabs (Rabinowitz & Abu-Baker, 2002).

A study of Israeli society's perception of its collective past has found that in the final period of

the current research Israeli-Jewish society has become more mature and self-reflective, allowing

it to partially adopt less biased narrative (Nets-Zehngut, 2008; 2012).

The following discussion is taken from Bar-Tal, Halperin, & Oren’s work (2010). Research has

found significant changes in the Israeli ethos of conflict over the years– especially during the

process of conflict transformation after the peace treaty with Egypt and during the Oslo Accord

period. These changes included a general decrease in all of the societal beliefs of ethos of

conflict. Public opinion polls showed a decrease in the percentage of society members who held

such societal beliefs as complete negating Palestinian goals, uncritical views of Israeli security

forces and militant policies, uncritical self-glorification and self-representation as a sole victim,

unequivocal negative representation of the Arabs and the Palestinians, and support for blind

patriotism (Oren, 2005). In addition, studies showed a significant reduction in the appearance of

the ethos of conflict beliefs in mass media, schoolbooks and especially in cultural products (Bar-

Tal, 2007b; Podeh, 2002). Another observed change indicated disappearance of certain beliefs

from the ethos of conflict, such as those that maintained that the Palestinians were not a nation.

This belief was abandoned by the majority of the respondents (for example, the percentage of

Israeli Jews in public opinion polls who thought that Palestinians were not a nation dropped from

70 percent in the period between 1973 and 1977 to around 50 percent in 1979 and 1983 and 32%

in 2009) and disappeared from political and cultural products (Oren, 2005).

Third, studies found changes in the content of some of the societal beliefs of ethos of conflict.

For example, after 1977, beliefs about peace changed from an abstract notion of peace to a view

of peace as a realistic prospect to be achieved by negotiations and compromise. Meaningful

changes also appeared in beliefs that represented how the Arabs were viewed. The past view of

the Arabs as a single monolith united in their enmity to Israel was transformed into a more

nuanced view that distinguished among different groups, each having a different kind of

44

relationship with Israeli Jews, ranging from hostility to peaceful intentions (Bar-Tal &

Teichman, 2005; Oren 2005).

Fourth, peace beliefs became more dominant while other beliefs, such as self-view as being the

sole victim of the conflict became more peripheral. Lastly, researchers identified an increased

awareness of the contradictions among various central aspirations expressed in societal beliefs.

For example, a significant part of the Jewish public in Israel became aware that controlling the

occupied territories that are densely populated by Palestinians may harm the Jewish character of

the Israeli state (see Magal, Oren, Bar-Tal, & Halperin, 2010). However, adding masses of

Palestinians as new citizens to the State of Israel may threaten the existence of the Jewish

majority and thus the democratic nature of the state (Magal et al, 2010). This potent awareness

resulted in changing specific beliefs related to the core issues of resolving the Israeli-Palestinian

conflict to a more compromising direction (e.g., the two-state solution or unilateral

disengagement).

Ideological Conflict Supporting Beliefs 2000-2006

The eruption of the second Intifada and its violence reversed the moderating trend and re-

strengthened some of the societal beliefs of the ethos of conflict (see Bar-Tal, 2007b; Bar-Tal, &

Sharvit 2008; Hermann, 2007; Sharvit & Bar-Tal, 2007). Researchers elaborated on the central

societal beliefs in the ethos of conflict that are the main obstacles to peace in recent period

(2000-2009), relaying on data from public opinion surveys, political platforms of the main

parties, as well as on speeches and interviews by top policy-makers.

Beliefs about the Israeli and Palestinian goals. As noted above, since the 1980s, the beliefs that

have denied Arab rights to the land and refused to recognize the existence of a national

Palestinian movement and of a Palestinian entity ceased to be central in Israel. For example, the

findings of a recent Peace Index survey show a solid majority of 61% among the Jewish public

who see the Palestinians’ claim to an independent state of their own as justified (Peace Index,

November 2008). Additionally, 62% of the Israeli Jewish public in June 2009 recognized the

existence of a Palestinian people (32% oppose recognition and the rest do not know) (Peace

Index, June 2009). As we have noted, all recent Israeli Prime Ministers, including current Prime

45

Minister Netanyahu, accept the idea of a Palestinian state, and public opinion polls indicate that

most of the Israeli Jews accept the two-state solution. It would appear that this change indicates

the removal of a significant barrier for conflict resolution with the Palestinians.

However, a closer look at the current Israeli beliefs about Israeli and Palestinian goals reveals

that the changes in Israeli beliefs are less fundamental than they seem at first glance. There are

many indications that the acceptance of the two-state solution does not suggest any recognition

of the Palestinian conflict narrative or abandonment of the Jewish claim for the territories in the

West Bank, captured in the 1967 war. Furthermore, there are indications that the level of

resistance to the Palestinian narrative has grown in recent years in Israeli society. For example,

in a 2008 poll a majority of the Jewish public defined the West Bank as “liberated territory”

(55%) and not as “occupied territory” (32%). This is a change in comparison to 2004: in August

2004, 51% regarded the West Bank and the Gaza Strip as occupied territories, and 39% thought

or were sure that they were not (Peace Index, March 2008). Accordingly, a Peace Index survey

found that the majority of Israeli Jews defined Jewish settlements in the occupied territories as

“settlements that are not in the occupied territories” (Peace Index, August 2004).

There is no doubt that the prevailing view that the West Bank is not occupied serves as a major

barrier to conflict resolution. The perception of the majority of Jews in Israel, of the religious

establishment, and of a significant segment of the political system is that the West Bank

exclusively belongs to Jewish people. The perception that these lands have been liberated leads

to rejection of the idea of compromising on this land and contributes to the difficulty of

withdrawing from this territory and to the feeling that the Jewish people are the only party that

contributes tangibly to the resolution of the Israeli-Palestinian conflict (see Magal et al., 2010 for

extensive elaboration of this point).

Another indication of the current radicalization in refuting the Palestinian narrative is the "Nakba

Law." The bill for this law proposed banning Israeli Arabs from marking the anniversary of the

1948 events which they refer to as the “Catastrophe" or "Nakba." According to the original

version of the law, which was passed in the Ministerial Committee for Legislation in June 2009,

violation of the statute could result in a prison sentence of up to three years. However, this

46

version has provoked condemnation on the left, including among Labor party ministers, and even

in the hawkish Likud party. As a result, the Ministerial Committee for Legislation passed a

revised bill, which calls for dissuading government bodies from funding activities that

commemorate the "Nakba."

In light of the common perception of the territories as being Jewish land and the resistance to the

Palestinian narrative, it is not surprising that most Israeli Jews oppose a major Israeli withdrawal

from the territories, oppose significant compromise on Jerusalem and oppose the return of even a

small number of Palestinian refugees to Israel, despite vast Israeli agreement with the vague

principle of the two state solution. They view the solution as one-sided, surrendering Israeli

possessions without significant contribution of the Palestinians to the solution.

Image of the Arabs. Since 2000, public opinion polls and political platforms have demonstrated

the return of some aspects of the old perceptions regarding the Arabs and the Palestinians. First,

as we indicated above, during the years 1977-2000, the Jewish Israeli perception changed from

viewing the Arabs as a single homogeneous group united in their enmity to Israel, into a more

differentiated perception that distinguished among different Arab nations (Bar-Tal & Teichman,

2005). After 2000, the focus shifted again to the idea of a Muslim coalition aiming to destroy

Israel. There is a frequent tendency to refer to a large homogeneous group - the "axis of evil."

Thus, in a 2006 JIPP poll,2 78% of respondents agreed with the statement: "The Muslims in the

region will never accept the existence of the State of Israel."

Second, there are indications that negative stereotyping of the Palestinians has become more

common since 2000. For example, while in 1997 39% of Israeli Jewish respondents described

the Palestinians as violent and 42% as dishonest, by the end of 2000 the figures were 68% and

51% respectively (Bar-Tal & Sharvit, 2008). Similarly, in November 2000, 78% of the Jewish

public agreed with the statement that Palestinians have little regard for human life and therefore

persist in using violence despite the high number of their own casualties (Peace Index,

November 2000). A 2008 study presented similar findings: 77% of the respondents thought that

2 The Joint Israeli-Palestinian Poll (JIPP) initiated in 2000 by the Truman Institute for the Advancement of Peace at the Hebrew University of Jerusalem and the Palestinian Center for Policy and Survey Research (PSR) in Ramallah. For more information see http://truman.huji.ac.il/polls.asp/

47

the Arabs and the Palestinians had little regard for human life, and 79% agreed with the

statement that dishonesty has always characterized the Palestinians and the Arabs (Halperin &

Bar-Tal, 2009b).

In addition, even though before the Oslo Accords there were some indications (especially in the

Labor party platforms and among Labor voters) of perceiving Israeli actions in a more critical

light, and recognition that Israel was also responsible for the “political deadlock” in Arab-Israeli

relations, since 2000 Arabs are again unanimously blamed for the continuation of the conflict,

and for intransigently rejecting a peaceful resolution. For example, the 2003 Labor party

platform states that 'the [Israeli] hopes for ending the Palestinian-Israeli conflict were dashed as a

result of the waves of hatred, incitement, extreme violence, and terror unleashed on Israel under

the patronage of the Palestinian Authority" (Labor Party, 2003).

Collective self-victimization. Since 2000 there has also been a return of old collective self-

victimhood perceptions in Israeli society. This feeling began to evolve in the wake of the second

Intifada. As noted, the majority of Israeli Jews blamed the Palestinians for the eruption of the

violence and thought that the Palestinians were entirely or almost entirely responsible for the

deterioration in the relations between them and the Israelis (Bar-Tal & Sharvit, 2008). However,

this was not the only cause for the deep feeling of victimization that seized most Israeli Jews.

This feeling was intensified by the repeated suicide bombing attacks, which claimed many

Jewish lives, most of them civilians. The feelings of victimization became pervasive among

Israeli Jews because every active resistance to occupation and/or violent attack against them has

been perceived as an act of terrorism and received immense exposure as such in the media

(Wolfsfeld & Dajani, 2003).

In a nationwide representative sample conducted in November 2007, 80.8% of Jewish-Israelis

agreed with the statement that: "Despite Israel's desire for peace, the Arabs have repeatedly

forced war" (Halperin & Bar-Tal, 2009b).

In their speeches, Israeli politicians emphasize the suffering of Israeli civilians, while presenting

Palestinian civilian casualties as victims of Palestinian leadership action. An example can be

48

found in Olmert's speech in January 17, 2009, following the Gaza War that resulted in the deaths

of more than 1000 Palestinians, many of them civilians:

Israel, which withdrew from the Gaza Strip to the last millimeter at the end of

2005 – with no intention of returning – found itself under a barrage of missiles…

Hamas has placed its military system in crowded residential neighborhoods,

operated among a civilian population which has served as human shields and has

acted under the aegis of mosques, schools and hospitals, while making the

Palestinian population a hostage to its terrorist activities, with the understanding

that Israel – as a country with supreme values – would not act… I also wish to say

something to the people of Gaza… We do not hate you; we did not want and do

not want to harm you…We feel the pain of every Palestinian child and family

member who fell victim to the cruel reality created by Hamas which transformed

you into victims" (italics added)

In this sense, Israel perceives itself as a victim of the Palestinian leadership who "force" Israeli

Jews to kill Palestinians.

The sense of being collectively persecuted by the international community was greatly

strengthened following the Goldstone UN report in September 2009 about the Gaza war that

accused Israel and Hamas of violating the laws of war, and then following worldwide

condemnation for the violent interception of the Turkish civilian flotilla by the Israeli navy that

tried to reach blockaded Gaza with humanitarian aid in June 2010. These views held by the

public and the leadership reflect the well-entrenched siege mentality that characterizes Israeli

Jewish society. Two thousand years of Diaspora is viewed as one long period of persecution,

with the climax of the Holocaust as a national trauma, leaving their marks on the collective

psyche. The belief that the whole world is against us is well connected to the ideological beliefs

supporting conflict (Bar-Tal, 2007b; Bar-Tal & Antebi, 1992).

All this stands in sharp contrast to the situation during the early 1990s, before the Oslo Accords,

when Israeli politicians tended to highlight Israel's friendly relationship with other nations. The

49

1992 platforms of the two major parties (Labor and Likud) for example, praised the fact that

Israel was able to establish diplomatic relations with many countries that had refused to have

such relations through many decades of Israel's existence (Labor, 1992; Likud, 1992). The

current perception of Israel as victim of a hostile world can explain Israeli suspicion of foreign

involvement in the conflict, including mediation attempts by other countries and organizations

such as the “Quartet”, the United States, Russia, the European Union and the United Nations,

who are represented by a special envoy.

Positive collective self-image as militarily and morally superior. During the years 2000-2009

there was also re-strengthening of positive beliefs about Israel as militarily superior to the Arabs.

For example, in 1993, 58% of Israeli Jews believed that Israel had the ability to wage war

successfully against all the Arab states. This percentage dropped to 48 percent in 2000, and then

rose to 67% in 2004 and 72% in 2005 (Oren, 2009).

Peace beliefs. Since 2000 there are many indications that peace beliefs have become less central

in Israeli society. For example, in contrast to previous years, peace seldom appeared in the 2003

and 2006 Likud and Labor election platforms.

Public opinion polls also indicate that since the 2000s, peace as a goal has become less dominant.

For example, in a time series survey of the Institute for National Security Studies (INSS) at Tel

Aviv University, respondents were asked to rank four values (democracy, peace, greater Israel

and a Jewish majority in Israel). Since 2000, there has been a significant decrease in the priority

of the goal of peace.

The findings presented about the ideological societal beliefs of ethos of conflict correspond to

the results of a wide-ranging study in which 100 Israeli Jews were interviewed in depth

(November 2003- June 2003) about their views on the Israeli Arab conflict. The interviewees

had been at least 17 years old in the 1967 war and proportionally represented all segments of the

Jewish population in Israel (according to political orientation, socio-economic status, religiosity,

gender and geographical residence). In general, the study showed that the ethos of conflict is

well entrenched among the interviewees, independent of their self-categorization on the

50

dimension of hawks-doves. Many of them believe that Jews have an exclusive right to the land

between the Mediterranean Sea and the Jordan River and in 1967 this land was completely

liberated. Only a small percentage of them recognized some kind of right to this land by the

Palestinians as well. Although the majority of the interviewees understood that the idea of

"Greater Israel" was unrealistic and accepted the principle of dividing the land between the two

nations, they objected to a complete dismantling of the Jewish settlements in the Palestinian

occupied territories. The majority of them agreed to dismantle only isolated Jewish settlements.

In addition, the great majority of them viewed Jerusalem as the reunited capital of the State of

Israel and objected to its division. Almost all of them rejected acceptance of any refugees and did

not see any Jewish responsibility for the creation of the problem. The vast majority of

respondents, including those who viewed themselves as doves, expressed extreme mistrust of

Arabs and in particular of the Palestinians, and attributed very negative characteristics to them.

This stands in contrast to their positive self-view and as being the main victim of the conflict.

They did not believe that peace was near and saw Palestinian intransigence as responsible for

this situation (Raviv, Bar-Tal, Arviv-Abramovich, in preparation).

Alternative Beliefs of Israeli Jewish Society

Societies involved in intractable conflict experiences tend to reject information contradictory to

the ethos of the conflict societal beliefs. Participation in an intractable conflict tends to "close

minds" and facilitate a tunnel vision that precludes the consideration of incongruent information

and alternative approaches to the conflict (Rapoport, 1960). Society uses control mechanisms to

ensure that its members do not entertain alternative beliefs (Bar-Tal & Salomon, 2006). Even

when they spread throughout society, societal mechanisms cause alternative information to be

rejected, so that society members will not be persuaded by their evidence and arguments (Bar-

Tal, 2007b; Horowitz, 2000; Kelman, 2007).

In the context of Israeli Jewish society, while a communist party predates the foundation of the

State of Israel, alternative beliefs were uncommon before the 1960s and early 1970s. The arrival

of Egyptian President Anwar El Sadat to Jerusalem in 1977, which was found to be a major

event in the history of the Israeli-Palestinian conflict (Oren, 2005) and the ensuing Egyptian-

51

Israeli peace accord, signed by Israeli Prime Minister from the Likud right wing party,

Menachem Begin, greatly contributed to the proliferation of alternative beliefs among Jewish

members of Israeli society. These changes led to a solidification of alternative culture, opposed

to the ethos of the conflict, especially in sectors of art, academia and in civil society, yet changes

were also apparent in the political arena as, for the first time, non-governmental organizations

such as ‘Peace Now’ were formed, organizations which clearly manifested alternative beliefs

(Bar-Tal, 2007b; Magal, Bar-Tal & Halperin, in press; Bar-On, 1996; Ben-Ezer, 1997; Chazan,

2006; Inbar & Goldberg, 1990; Rynhold. 2007).

The Oslo agreement with the Palestinians concluded by the late Israeli Prime Minister Yitzhak

Rabin has signified willingness to support peace. However, as noted by Bar-On, Israelis found it

exceedingly difficult to reframe their beliefs following the Oslo accords (1997). In this context,

Rabin’s murder signified the demise of the hopes of alternative beliefs finally gaining

acceptance, forming a social wide ethos, which could replace the ethos of the conflict. According

to Bar-Tal the continued terror attacks on Israeli citizens during the Oslo process contributed to

the significant lessening of support for peace among Israeli Jewish society (2007b). Following

Rabin’s murder and the ascendance to power of Benjamin Netanyahu, the failure of the Camp

David summit, during Prime Minister Barak short tenure in 2000, which was followed by the

eruption of the Palestinian second Intifada, a re-escalation of the Israeli-Palestinian conflict has

ensued, lasting until the present (Magal, Bar-Tal & Halperin, in press). These tangible events

strengthened the hold of the ethos of the conflict on Israeli Jewish society and it soon became

dominant again among political leadership and society members (Magal, Bar-Tal & Halperin, in

press; Ben-Porat & Mizrahi, 2005; Dor, 2004; Halperin & Bar-Tal, 2007; Hermann, 2007).

Nevertheless contradictory narratives of the culture of peace have yet to disappear and can be

found among Israeli Jewish society’s intellectual and cultural elites. Alternative beliefs are

competing with societal beliefs of the ethos of the conflict which are supported by the Israeli

government and other formal institutions, as well as the majority of mass media channels

52

(Magal, Bar-Tal & Halperin, in press; Dor, 2006; Hermann, 2009; Streiner, 2001; Wolfsfeld,

2004).3

The current research focus

The present research explores changes in intensity of expressions of the ethos of the conflict in

all published decisions of the Supreme Court from 1948 to the end of 2006 which have related to

the conflict. This line of research complements studies regarding the ethos of the conflict as

manifested in different political, societal, educational and cultural products, including Israeli

literature (Cohen, 1985; Ben Ezer, 1977), mass media (Elbaz & Bar-Tal, in press; Yadgar, 2004),

national ceremonies (Arviv-Abramovich, 2010), school textbooks (Bar-Tal, 1998a and 1998b;

David, 2007; Podeh, 2002), political leaders’ speeches (Rosler, 2012, Magal, Bar-Tal &

Halperin, in press), theatre and cinema (Gertz, 1995, 1998; Urian, 1996; Shohat, 1989), political

platforms (Oren, 2005), visual art (Shimonovitz-Nishri, 2014; poetry (Tessler, 1999) and even

public opinion (Oren, 2005, 2009). Other studies have focused on a single aspect of the ethos,

such as the de-legitimization of the opponent (Cohen, 1985; Oren & Bar-Tal, 2007), security

(Bar-Tal, Jacobson & Klieman, 1998), patriotism (Ben Amos & Bar-Tal, 2004) or self-collective

victimhood (Bar-Tal & Antebi, 1992; Hareven, 1983)

The Supreme Court has played a key role in Israel’s political, social and legal arenas (see

Chapter 3) – it is not only the court of last resort but has also dealt with substantial problems

regarding Israeli society as the High Court of Justice (see chapter 3). As the High Court of

Justice the court adjudicated key issues related to the Israeli-Palestinian conflict. However,

manifestations of the shared psychological repertoire of the Israeli Jewish society as a side to an

intractable conflict have yet to be studied in the context of all the court’s published decisions.

The present study stems from the assumption that the Court has drawn extensively upon the

Israeli society's ethos of the conflict. This is manifested by the language of its judgments

3 Daniel Dor, "Is there anything we might call dissent in Israel? (And, if there is, why isn’t there?)," Critical Inquiry 32(2006); Tamar Hermann, The Israeli peace movement: A shattered dream (Cambridge: Cambridge University Press, 2009); Scott Streiner, "Shooting and crying: The emergence of protest in Israeli popular music," The European Legacy 6, no. 6 (2001); G. Wolfsfeld, Media and the path to peace (Cambridge: Cambridge University Press, 2004).

53

regarding the conflict, judgments which the Court may not have been able to justify using the

applicable legal norms.4 According to extensive scholarship written in the past few decades on

the social role of the Court, partly with regard to the conflict with the Palestinians, one of the

most significant social roles of the Supreme Court is legitimizing State actions regarding the

conflict (see chapters 3 and 7).

The present research provides insights regarding the influence of some of the historical changes

in the ethos of the conflict in Israeli Jewish society, given the role the Supreme Court has played

in some of the dramatic events which have shaped the conflict. The involvement of the Supreme

Court in such events may further suggest that its judgments not only reflect the ethos but also

provide insight into the way it has contributed to ethos construction and change. In this respect, it

has been argued that the Supreme Court has played a leading role in the creation of the linguistic

infrastructure which has legitimized the occupation and the settlements (Kimmerling, 2002;

Lynk, 2005; Kretzmer, 2013).5

While this key issue, the Court's involvement in the formation of the ethos, is beyond the scope

of the present research, the research sheds light on the role played by the Court regarding its

contribution to the creation, proliferation and development of the ethos of the conflict. The

results of the present research provide a tool for further study of the distinction between

judgments containing frequent and extensive use of the ethos of the conflict as opposed to

judgments which are less reliant on the ethos.6

4 It can be further argued that the use of the ethos by the Supreme Court may benefit from a renewed discussion of the non-rational forms of legitimacy as offered by Weber's classic discussion of the forms of legitimacy, which have been found by some to be irrelevant regarding modern, Westernized societies (Weber, 1968). 5 As noted by Michael Lynk, "over the years, the HCJ has tutored the Israeli political and military leadership on the proper terminology it should use in defending its projects in the occupied territories in order to pass the court’s judicial litmus test (e.g., “security,” “temporary,” “military necessity,” “the humanitarian features of the Fourth Geneva Convention”). And, as is clear from their successes before the court, they have learned the lesson well. (Lynk, 2005, p. 11) 6 A detailed study of the use of the ethos in the context of a single Supreme Court judgment, HCJ 7015/02 Ajuri v. IDF Commander in West Bank, IsrSC 56(6) 352, supports this observation (Shinar, 2007).

54

Chapter III – The Israeli Supreme Court

Introduction

The present research examines the ways in which published decisions by the Israeli Supreme

Court relating to the conflict with the Palestinians reflect the social ethos of the Israeli-

Palestinian conflict as held by Israeli Jewish society. The significance of the study’s findings

regarding the psychological repertoire of the Israeli society as expressed by the published

decisions of the Court could not be fully grasped without acknowledging the legal, political and

social roles of the Court and their corresponding functions.

The legal, political and social functions of the Israeli Supreme Court have been extremely well-

researched, as evidenced by hundreds of scholarly articles and books dedicated to various aspects

of its decisions. The Court is also “the world’s most prolific, non-military judicial organ

operating in the field of belligerent occupation law, thereby attracting considerable scholarly and

judicial attention” (Harpaz & Shani, 2010, p. 514, see also Kretzmer, 2005). Given the extensive

scholarly writings regarding the Court the present chapter does not aim to explore all available

literature, but rather focus on recent articles and books as well as those most relevant to the

current research subject – the Court’s role in constructing, sustaining or reflecting the

psychological repertoire of Israeli Jewish society as a party to the Israeli-Palestinian conflict (see

Chapters 1 and 4 for detailed account of current research goals). Additionally, given the wide

availability of scholarly writings regarding the Court, the chapter does not attempt to provide a

comprehensive view of the legal functions of the Court, but rather focus on social aspects related

to the conflict with the Palestinians.

The issues addressed by the present study have seldom been discussed by previous researchers:

While Gad Barzilai has examined several aspects of the psycho-social role of the Court (1998,

1999), my research utilizes the latest political psychology and conflict resolution concepts,

theories and knowledge allowing for analysis of all the Court’s published decisions which relate

to the conflict in order to attain a comprehensive view of the Court’s psycho-social discourse

regarding the Israeli Jewish society and the Israeli-Palestinian conflict. The following chapter

55

will discuss some of the most significant legal, political and social roles and functions of the

Supreme Court, in particular those roles and functions relating to the conflict with the

Palestinians.

The first part of this chapter presents the Court’s legal roles and functions in general. The second

part discusses scholarly literature regarding the Court’s social and political roles and functions.

The third part examines legal roles and functions of the Court decisions regarding the conflict

with the Palestinians. This part draws on relevant scholarly literature. The final part of this

chapter explores scholarly literature regarding the social and political roles and functions of the

Court in the particular context of the conflict. Given that my research has focused on the first six

decades of the Court’s decisions, this chapter deals almost exclusively with this period: from

1948 until 2006.

The Supreme Court – General Legal Aspects

The Israeli Supreme Court has a dual function: it serves both as the highest appeals court in civil

and criminal matters, as well as sitting as the High Court of Justice. As the latter, it has original

and final jurisdiction in petitions brought against the state and its organs in matters that fall

outside the jurisdiction of other courts. It is mainly in this latter capacity that litigation between

public petitioners and policymakers takes place.

As the highest judicial instance, the Supreme Court is the most significant institution of Israel’s

judicial branch. The Court decisions are at the center of the canon of the Israeli legal system

(Shachar, Gross & Goldschmidt, 2004): As noted by legal scholar, Suzy Navot, “the rulings laid

down by the Supreme Court are binding upon all other courts (...) the Supreme Court, while it is

not bound by its own rulings, it usually abides by them, in cognizance of the importance of legal

stability as an indispensable value. Hence, as a rule, the Supreme Court does not readily deviate

from its own precedents, even though it is statutorily empowered to do so. But, if the Supreme

Court considers that a past ruling is liable to give rise to injustice, it regards itself as not only

56

permitted, but duty bound to deviate from what it regards as an antiquated norm, which no longer

realizes the legislative purpose in the light of contemporary reality" (2007, p. 59) .7

The Court is considered one of the most important institutions in Israel, a testament to both its

legal and extra-legal influence: The Court has enjoyed far reaching influence in Israel’s political

sphere (Hofnung 1999; Barzilai, Yuchtman-Yaar, & Segal, 1994; Dotan, 2003). Moreover, the

Court has been an active player in promoting a liberal agenda, often through petitions submitted

by various specific groups (Meydani, 2013; Mautner, 2002). The Court’s social and political

significance stems partly from its symbolic status as an icon of Israel’s democratic regime: Both

the Court, and its former Chief Justice, Aharon Barak, are highly respected throughout the world

(Barak-Erez, 2011, Sagy, in press A; Hirschl, 2004, 2010; Rosenfeld & Sajó, 2012). The high

international profile and respect for the Supreme Court are reflected by the large number of

scholarly articles discussing the Court: According to the Internet-based legal information

resource, LexisNexis Academic, the term ‘Israeli Supreme Court’ has been mentioned in no less

than 473 different law reviews and journals articles (mostly American) in the last five years.8

One of the most comprehensive studies regarding the Court and the Israeli public, undertaken in

1991, established that the Jewish-Israeli public has generally approved of the Court, and that the

majority has clearly supported most of the Court's rulings (Barzilai, Yuchtman-Yaar & Segal,

1994). According to Barzilai, the high levels of legitimacy enjoyed by the Court were due to

myths, as “the Court was considered to be detached from the inefficient and corrupted politics”

(1999, p. 26). It can be assumed, that given the prominent stature of the Court as a legitimate,

highly respected institution, with regard to the Israeli public, as well as the international

community, it can provide much needed legitimacy for Israel’s State actions. A scholarly

discussion of the Court’s legitimacy is presented in the second part of this chapter, regarding the

Court and the Israeli society.

The following paragraphs examine some of the most significant aspects of the Court’s legal

work.

7 According to Israel’s Basic Law: The Judiciary, section 20(b): “A rule laid down by the Supreme Court shall bind any court other than the Supreme Court”. 8 The search was conducted on June 10, 2014.

57

While many historical accounts of the Court begin in 1948, the year the State of Israel was

founded, legal historian Yoram Shachar points to the myriad connections between the Israeli

Supreme Court and the Supreme Court of British Mandate Palestine, viewing 1948 as the year of

the rebirth of both the Court and the Israeli legal system, evolving from a relatively unimportant

colonial institution, established in 1922, to an uppermost sovereign institution (Shachar, 2000).

The legal influence of the Supreme Court is revealed, to a large extent, by observing its

contribution to the creation of the Israeli legal system. According to Shachar, the Court has “led

the Israeli legal system” even before the foundation of the State of Israel, from the 1920s to the

present period (2000, p. 161). Since the Court’s foundation, it has attained institutional

independence in terms of salaries, security of tenure, selection to the bench and promotion or

demotion (Shetreet, 1984). The question of the independence of the judiciary has been partly

echoed by a debate regarding the identity of the head of the Israeli judicial branch: According to

official documents of the Israeli Judicial Authority,9 as well as the Israel Ministry of Foreign

Affairs,10 the President of the Court is also the head of the entire judicial system in Israel. This

view has been criticized by scholars, including former Israeli Minister of Justice, Professor

Daniel Friedman (Shohat & Segal, 2007), who have suggested that this claim does not reflect

Israeli law. Furthermore, Friedman and others have claimed that, by suggesting that the President

of the Court is the head of Israel’s judicial system, the basic principle of the independence of the

judiciary is damaged.

The Supreme Court is unique in several respects, which are strongly connected to the Court’s

political clout. First, the Court plays a dual role, as both the highest judicial tribunal in Israel but

also, at the same time, as the court of first instance regarding many administrative issues (Dotan,

2003, Mautner, 2011).. The Court has been described as an exceedingly powerful judicial forum:

The High Court of Justice has an unusual degree of discretion; for example, it has the remarkable

power of deciding whether to review a petition on its merits, normally by issuing an order nisi, or

to summarily dismiss the case after a preliminary examination. It likewise wields wide discretion

9 http://elyon1.court.gov.il/eng/system/index.html 10 http://www.mfa.gov.il/mfa/aboutisrael/state/democracy/pages/the%20judiciary-%20the%20court%20system.aspx

58

in deciding whether (and what) remedy to grant—indeed, it may decide to deny a remedy—even

when a petition is considered well-founded (Sagy, in press A, B).

A 1991 Court decision11 led to legislative reform in the area of judicial review of administrative

agencies. While this reform determined that district courts are entrusted with initial review over a

wide range of public authorities, the Supreme Court has maintained ultimate control over the

vast field of public law, never formally reducing its public-law jurisdiction (Sagy, in press B).

The Court also serves in several additional judicial roles, for example, it also considers appeals

on judicial and quasi-judicial decisions of various kinds, such as matters relating to the

disqualification of party lists and candidates in Knesset elections, disciplinary rulings of the Bar

Association and administrative detention.

As an appellate court, the Supreme Court considers cases on appeal, both criminal and civil, on

judgments and other decisions of the District Courts. The court is obligated by law to hear all

civil and criminal appeals of judgments in cases that were initiated in district courts. The Court

has discretion to refuse to address cases on the merits only in appeals from cases that were

initiated in the Magistrates Courts and subsequently appealed to the District Courts. This results

in more than “1,500 cases ending in final judgments each year, out of the more than 6,000 cases

the Court receives annually (these are only cases filed as main procedures to the Court; most of

these cases are closed by means of settlement, cancellation of petition pleaded by the petitioner,

case rejection by the Court, or other technicalities”) (Weinshall-Margel, 2011, p.565).

The Developing Constitutional Role of the Court

Many, if not most, of the chapters in Israel’s unwritten constitution have been created through

decisions of the Israeli Supreme Court (Sagy, in press B; Zamir, 1995; Meydani, 2011). The term

‘Court of Justice’, historically derived from the British Mandate reference to the High Court of

Justice in London, has come to be associated with the substantive meaning of the term "justice"

(Kretzmer, 2002).

11 HCJ 991/91 Pasternak v. Minister of Construction and Housing, PADI 45(5) 50.

59

The Courts Law, enacted in 1957 as well as the Basic Law: The Judiciary, which adopted the

language of the Courts Law, grants individuals direct access to the High Court of Justice through

submission of petitions. This unique legal mechanism has significantly extended the Court's

mandate, reviewing actions of both the executive and legislative branches.12 According to

Section 15(c) of the Basic Law: The Judiciary, the High Court of Justice has the power to

adjudicate "matters in which it sees need to grant remedy for the sake of justice and which are

not within the jurisdiction of another court or tribunal". Section 15(d)(2) of the Basic Law adds

to, and partly clarifies, section 15(c) by stating that the court has the powers "to grant orders to

state authorities, local authorities, their official and other bodies and persons fulfilling public

functions under law, to do an act or to refrain from doing an act in lawfully performing their

duties".

While the balance of powers between the Court and the Israeli parliament, the Knesset, regarding

constitutional issues can be perceived as an evolutionary process (Weill, 2012), in the last two

decades the Court’s attempts to shape social and political norms, utilizing self-proclaimed

constitutional capacities, has become more extensive: Following the legislation of the Basic

Law: Human Dignity and Liberty, Israel has undergone a ‘constitutional revolution’, allowing

the Court to strike down Knesset legislation on the grounds of contradiction with the principles

stipulated by the Basic Law (Barak, 1992-3; Barak Erez, 1995).

In the absence of a formal constitution, during the years 1948-1992, before the Basic Law:

Human Dignity and Liberty was enacted, the Court regarded the protection of human rights as

one of its legal roles (Carmi, 2005). The Court’s significant potential for shaping norms and

influencing political and social issues have all led to decreasing legitimacy and harsh criticism of

the Court (Carmi, 2005; Reichman, 2001). In political quarters proposals were made for

establishment of a constitutional court, in which the political echelons would have more say in

selecting its judges. Chief Justice Barak strongly objected to such calls. Barak regarded a

12 See HCJ 246/81 Agudat Derech Eretz v. Broadcasting Authority 35(4) PD 1; HCJ 141/82 Rubinstein MK v. Chairman of the Knesset 37(3) PD 141; HCJ 142/89 Laor Movement v. Speaker of the Knesset 44(3) PD 529.

60

separate constitutional court as foreign to the Israel legal system and one which would result in

the immediate politicization of Israel’s highest judicial authority (Barak, 2003).

The Court's reputation for protecting human rights during the pre-Basic Law: Human Dignity

and Liberty period was based, to a large extent, on one of the most famous cases adjudicated by

the Court, "Kol Ha'am" Co. Ltd. v. Minister of Interior,13 considered by many to be the most

important constitutional decision in Israel history (Kretzmer, 1990). Decided by the Court in

1953, the Court struck down an order of the interior minister to shut down two newspapers of the

communist party, one published in Hebrew (‘Kol Ha'am’) and the other in Arabic ('Al-Ittihad').

The Minister suspended both the newspapers for periods of ten and fifteen days respectively. The

Court held that since freedom of expression is a fundamental principle of the democratic process,

in exercising his power under section 19(2) (a) of the Press Ordinance, to suspend publication of

a newspaper if, in his opinion, matters published therein, “were likely to endanger public peace”,

the Minister must consider whether it is probable and not merely a distant possibility that as a

consequence of the publication public peace will be endangered. The Court's opinion, written by

justice Shimon Agranat, allowed for the development of a relatively robust judicial bill of rights,

applicable to the executive, under the theory that any empowering statute should be interpreted

as granting the executive the power to infringe upon a basic right no more than was necessary

(Reichman, 2001). The probable danger test aimed at providing adequate protection for freedom

of speech and used for the first time in Kol Ha’am has been used comprehensively by the Court

in later cases (Rubinstein & Medina, 2005), and expanded to cover other important basic rights

(Saban, 2011).

Another decision of highly significant constitutional ramifications was the 1969 Bergman

decision,14 the first case in which the Israeli Supreme Court exercised judicial review over

primary legislation. The judgment dealt with equality in the elections. The Bergman ruling has

been described as a symbol of a new period in Israel jurisprudence, a period of liberalism

(Barzilai, 2000). According to Gavison, "Although the Court tried to downplay the significance

of the decision, it was perceived by the legal community, as well as the Court, as a fundamental

13 HCJ 73/53 7 PADI 871 14 HCJ 98/69 Bergman V. Minister of Finance, PADI 23 (1) 693.

61

ruling” (1998, p. 65, my translation, O.S.L.). Further proof of the symbolic significance of the

Bergman ruling was provided by President (Retired) Shamgar in one of the Court’s most

significant cases, United Bank Mizrahi v. Migdal Cooperative Village15: “since the Bergman

case, we have acknowledged that this Court is competent to decide on the validity of

legislation that contradicts or violates a Basic Law” (p. 62)16. Justice Zamir noted in the same

decision, that “The constitutional revolution did not begin now, with the enactment of the

Basic Laws on human rights. It began a generation ago, with the Bergman decision. As is well

known, the Bergman decision first established that the Knesset can bind itself by means

of an entrenched provision in a Basic Law, and that the Court is authorized to annul an

ordinary law that is repugnant to such a provision. Justice Landau‘s opinion in that decision

began a revolution, because it came to the legal community as a complete surprise and

introduced a fundamental change: it reversed what had until then constituted the

axiomatic view of the status of the Knesset, the status of the Court, and the relationship

between them” (p. 283). The Bergman decision laid solid ground for constitutionalism and

judicial review (Weill, 2012). According to Barzilai Bergman is considered a modest and careful

ruling, focusing on procedural deficiencies as a cause of judicial abolition of parliamentary

legislation rather than substantive issues, yet the decision established the principle of the Court’s

ability to cancel Knesset’s legislation (Barzilai, 2000).

Before the 1970s, the Court was perceived as “remote and irrelevant to politics” (Barzilai, 1999,

p. 27). However, since the 1980s, the Court has gone through a transformation regarding the

nature of its judicial functions (Landau, 1989; Kretzmer 1990a; Zamir, 1990; Mautner, 1993;

Dotan & Hofnung, 2001; Segev, 2006). The Court reformulated its doctrines on standing,

justiciability, and reasonableness, opened its gates to individuals claiming to represent the public

interest, and entertained petitions on an array of issues that had long been considered political in

nature (and therefore unfit for judicial decision). Public petitioners are now allowed to bring their

claims into the court without the need to establish their right of standing; in fact, there is no

social or political issue that is not deemed “justiciable” (Rubinstein & Medina, 2005) apart

mainly from the legality in international law of the Israeli settlements in the Palestinian Occupied

15 CA 6821/93, 49(4) PADI 221. 16 Page numbers are for the official English translation.

62

Territories (Medina, 2007). Some have observed that these changes amount to a conceptual or

intellectual revolution regarding the manner in which the Court perceives its role as part of

Israeli state and society (Landau, 1989; Kretzmer 1990a). The direct effect of this conceptual

change has mainly been a systematic increase in the power of the Court by enlarging the scope

and depth of its judicial review (Segev, 2006).

The concept of ‘standing' was designed to allow the Court to function as an institution which

refrains from dealing with issues reflecting clashes of interests between opposing sectors in

society (Galligan, 1986; Dotan & Hofnung, 2001). In a landmark decision, Ressler v. Minister of

Defence,17 the Supreme Court reversed its prior rulings on the issues of standing and

justiciability (Netanyahu, 1993; Dotan & Hofnung, 2001; Dotan, 2003; Navot, 2007; Mautner,

2011) and acknowledged its duty to serve as the guardian of the rule of law, rather than merely a

forum for adjudication of conflicts between individuals and the state (Mautner, 1994; 2011).

Access to the Court has been made easier, not only as a result of the rules of standing and

justiciability, but also due to the minimal costs of litigation (Dotan & Hofnung, 2001, Dotan,

2003).

These trends have resulted in an increase in the number of petitions submitted to the court,

among them petitions related to national security (Hofnung & Margel, 2010). However, Barzilai,

Yuchtman-Yaar and Segal’s extensive research of the High Court of Justice note that until the

early 1990s the Court did not fully exploit its potential powers to shape democratic institutions in

Israel, although the Israel public was supportive of such intervention (1994). The Court tended to

play a passive role with regard to the actions of Israeli military authorities, yet this has gradually

changed since the 1980s: For example, in the case of Schnitzer v. The Chief Military Censor,18

which dealt with a the Chief Military Censor decision to forbid the publication of a newspaper

article that was critical of the outgoing head of the Mossad, the Court decided that “There can be

no effective exercise of freedom of expression without security. But free expression and public

debate contribute to state security as part of the system of checks and balances” and “free

expression may not be curtailed unless there is a near certainty that the publication will cause

17 HCJ 910/86 42(2) PADI 441. 18 HCJ 680/88 PADI 42(4) 617.

63

substantial and grave harm to security” (p. 3, see also: Barzilai, Yuchtman-Yaar & Segal, 1994;

Navot, 2007).

Changes to the Court’s willingness to adjudicate cases of significant political implications led to

a rapid growth in the number of petitions submitted to the Court as the High Court of Justice:

from 86 appeals to the Court submitted in 1950 to 333 in 1960. In 1970 there was only a slight

increase to 381. In comparison, Israel’s population grew substantially, from 2.2 million to 3.1

during the 1960 to 1971 period.19 Yet the number more than doubled to 802 petitions in 1980. In

comparison, Israel’s population grew at a substantially lower rate, from 3.1 million to 4.1 during

the 1971 to 1982 period. The number of petitions grew substantially to1,308 in 1990, while

Israel’s population grew at a substantially lower rate, from 4.1 million to 4.6 during the 1982 to

1989 period. The number of petitions grew at a moderate pace to 1,700 in 2000, while Israel’s

population grew at a much higher rate, from 4.6 million to 6.4 during the 1989 to 2000 period

(Barzilai, 1999; Dotan 2003). According to Barzilai, this rate of increase can be found in few

other democracies (1999).

By seeking judicial review, interest groups in general, and “repeat player” groups in particular,

have played a “significant role in initiating reforms for the acknowledgment of civil rights,

equality, and public participation in governmental decision making” (Dotan & Hofnung, 2001, p.

10). Government agencies almost take for granted that any major policy decision will be

challenged by petitions submitted to the Court (Straschnov, 1994).

Although Israel had enacted several Basic Laws since the 1950s, prior to 1992, Basic Laws dealt

only with the structure of government and had, at most, procedural entrenchment provisions.

However, the 1992 Basic Laws included provisions for substantive, not just procedural,

entrenchment. The two basic laws do not provide explicitly for judicial review, but the

limitations they place on future legislation laid the ground for the Court to intervene in cases

where conflicts were claimed to exist between such legislation and the basic laws (Navot &

Peled, 2009). It was also the first time that individual rights were mentioned and upheld by Basic

Laws (Weill, 2012).

19 All data collected from Israel’s Central Bureau of Statistics: http://www.cbs.gov.il/statistical/statistical60_heb.pdf

64

The 1992 Basic Laws, Basic Law: Human Dignity and Liberty and Basic Law: Freedom of

Occupation were described by Aharon Barak, at that time a justice of the Supreme Court, as a

"constitutional revolution", as the Knesset, for the first time, restricted its own power to limit

certain fundamental human rights (Barak, 1992-3, p. 12). The ‘constitutional revolution’ of 1992

was an effort to institutionalize the liberalization achieved during the 1980s, against

countervailing forces (Navot & Peled, 2009). The Court's interpretation of its changed

constitutional mandate following passage of Basic Law: Human Dignity and Liberty was hailed

as dramatic. It has sparked a heated debate between scholars and justices who regarded the Basic

Law as a constitutional revolution and others, including constitutional law expert Ruth Gavison,

who strongly objected to this view, noting that judicial review of legislation was neither

mandated by the Basic Laws nor was it desirable (Gavison, Kremnitzer & Dotan, 2000).

The 1992 Basic Law: Human Dignity and Liberty sparked a new constitutional discourse which

has been adopted by the Israeli judiciary (Dotan, 2000). A landmark case in this respect was the

1995 United Mizrahi Bank decision, referred to by former Chief Justice Aharon Barak as “our

Marbury vs. Madison” (Rabin & Gutfeld, 207, p. 310). The case concerned a law that was

allegedly unconstitutional, as it was claimed to be incompatible with the Basic Law: Human

Dignity and Liberty. The Supreme Court not only declared the existence of a formal constitution,

in the form of Basic Laws, but also held that the courts have the power of judicial review over

primary legislation emanating from the existence of such a constitution (Rabin & Gutfeld, 2007;

Weill, 2012). Prior to United Mizrahi Bank, the Court had remained laconic in its reasoning

about why it enjoyed the limited power of judicial review it exercised in the Bergman case,

mentioned above (Weill, 2012a).

The Court's view of its expanded constitutional mandate following the legislation of Basic Law:

Human Dignity and Liberty could also be perceived as a highpoint of a gradual process aimed at

enlarging the Court’s scope of judicial review: As noted above, since the 1980s the Court has

increasingly recognized ‘reasonableness’ as a basis for judicial review.20 The Court's recognition

20 As noted by Barak-Erez, reasonableness extends “beyond mere irrationality and enables the court to overrule decisions which do not balance properly between relevant considerations” (2009, p. 119).

65

of reasonableness as a key criterion for judicial review of all governmental action echoes similar

expansion of the boundaries of the doctrine of justiciability (Barak-Erez, 2009). It should be

noted, however, that despite declarations made by Aharon Barak and others concerning the

expansion of justiciability, judicial intervention of the Israeli Supreme Court in administrative

and legislative decisions is more limited than is usually assumed (Gavison, Kremnitzer & Dotan,

2000; Barak Erez, 2009).

While the Court protected human rights even before Basic Law: Human Dignity and Liberty was

legislated, social, cultural and economic rights have only recently been recognized as similar in

status to that of civil and political rights.21 This represents a marked change from the Court’s

previous judgments, which provided minimal protection for social, cultural and economic

rights22 (Barak-Erez & Gross, 2007; Medina, 2010). Similarly, the Court’s willingness to

adjudicate cases dealing with the rights of the Israeli Arabs was termed by Barzilai in 2000,

“legal deprivation” of the Arab-Palestinian minority in Israel (Barzilai, 2000). Saban noted in

2005 that the gap between the use of human rights jargon in the Court’s decisions and the actual

content of its decisions is clear when examining the Court’s judgments in petitions regarding

distributive justice and the Israeli Arab minority (Saban, 2005).

Social and Political Functions of the Israeli Supreme Court

The Court enjoys considerable influence in Israeli political, economic, media and social

domains, reflecting its unique judicial powers (Dotan, 2003) as well as its “undisputed centrality

in Israeli public life, unmatched by any other judicial forum” (Sagy, in press B, p. 13). More so,

it is claimed that the Court’s decisions should be understood and discussed, at least in part, as

expressions of an interaction between the Court and politicians, bureaucrats, interest groups and

the public (Meydani, 2011).

The Court’s influence on Israeli society is echoed by the manner in which it is closely followed

and intensively covered by both the media and the public (Dotan & Hofnung 2005). Writing in

21 HCJ10662/04 Hassan v. Social Security (Not yet published). 22 HCJ 888, 366/03 Commitment to Peace & Social Justice Association v Minister of Finance, 60(3) PD 464.

66

1999 Barzilai noted that the Court enjoyed legitimacy given public beliefs regarding its judicial

supremacy deriving from its perceived impartiality, fairness, professionalism and morality, a

view which may have been more accurate at the time it was written than in later periods.

The Court and the Israeli Society – An Overview

Functioning as the High Court of Justice, the Court has positioned itself, at least symbolically, as

the gatekeeper of Israel’s democracy (Ben Naftali & Shany, 2003; Navot & Peled, 2009). Its

judges are regarded not only as legal experts but also as "guardians of society's moral fabric"

(Kretzmer, 2002, p. 190). Yet during the last decade the Court's alleged policy of judicial

activism has been under attack by political leaders, among them former Minister of Justice,

Professor Daniel Friedman, who waged a campaign to curb the power of the Court (Navot &

Peled, 2009). However, the Court has also been criticized for its lack of willingness to utilize

judicial powers in certain circumstances: Scholars who have studied the role of the Supreme

Court with regard to the conflict with the Palestinians, and especially its role during the more

than four decades of military occupation of Palestinian territories, have criticized the Court's

unwillingness to support the cause of human rights and to uphold the norms of international law

with regard to the occupation of the Palestinian population (see, for example, Shamir, 1990;

Sheleff, 1993; Kretzmer, 2002, Sfard, 2003).

According to former Chief Justice Aharon Barak, courts have an important role in bridging the

gap between law and society and in protecting the fundamental values of democracy with human

rights at the center (2002), while the judge must also “look for the accepted values of society,

even if they are not his or her values. He or she must express what is regarded as moral and just

by the society in which he or she operates, even if it is not moral and just in his or her subjective

views” (2002, p. 55). A historical examination offers a more complex image of the Court and its

relations with Israeli society: Scholars note that the Court’s decisions during the first decade

following Israel’s establishment were restrained, utilizing formalistic legal argumentation,

reflecting willingness to examine the considerations of the State’s administrative authorities, but

showing deference in certain matters (Shapira, 1973; Kretzmer, 1990a). The Court’s formalistic

67

and restrained decisions reflected strong support for the government policies as well as collective

values common to the majority of the Israeli society at that period (Lahav, 1989).

A historically-oriented approach to the role that values have played in the judgments of the

Supreme Court is offered by Mautner's cultural study of the Israeli judiciary. According to

Mautner, the influence of the Court on the formation of norms and values of Israeli society was

made possible by the Court’s frequent use of formalistic legal reasoning (Mautner, 1993). While

values have always played a key role in the decisions of the Supreme Court, during the 1950s the

Court chose not to disclose the moral, value-derived aspect of its decisions. During the early

days of the State of Israel, the Court perceived its liberal ethos as alien to the values of the

collectivist Israeli society of the period. While Mautner believes the Court has played an avant-

garde role in the formation of Israel's identity, the influence of the Court on the formation of the

norms and values of the Israeli society was made possible by its frequent use of formalistic legal

reasoning, which played down the normative content of the decisions (Mautner, 1993).

According to Nir Kedar, the Court relied on formalistic argumentation to promote basic values

such as rule of law, freedom and equality, which are attained by formal justice (2006).

Mautner observes that formalistic reasoning, prevalent in the 1950s Court decisions, has been

declining steadily in subsequent decades. Formalist reasoning finally gave way to a rise in value-

led reasoning during the 1980s. One of the rationales for this dramatic transformation has been

the changes in the Supreme Court's addressees: The post-1980s Court has begun to view its

addressees as the whole of Israeli society, not only legal professionals, who were the target

audience of the Court during previous decades. This has led to the adoption of more familiar and

popular values by the Court, derived from the general culture of Israeli society, using language

and images which are clear and meaningful to the general public. This has effectively lowered

the divide between the Court, which was part of the legal sub-culture, and the general Israeli

culture. Furthermore, with regard to the substance of decisions taken by the Court, Mautner notes

that in the 1980s Court expressed its willingness to adjudicate the most problematic of moral

68

issues, which had previously been regarded as beyond the scope of judiciary review,23 including

the need to limit the powers of the military authorities. This willingness by the Court, coupled

with the need to reflect the values of Israeli society, led President Barak to declare, with regard

to the limitations on the powers of the military authorities in the context of hostilities (and not

merely the occupied territories), that:

“Considerations of security have deterred judicial review of administrative discretion in the past.

It was thought that judges should not interfere since they are not experts in security matters. But

in the course of time it has become clear that there is nothing unique about security

considerations, in so far as judicial review is concerned. Judges are also not administrative

experts, but the principle of separation of powers requires that they review the legality of the

decisions of administrative officials. In this connection, security considerations have no special

status. They, too, must be exercised lawfully and they, too, are subject to judicial review. Just as

judges can examine the reasonableness of professional discretion in every other field and are

required to do so, so can they examine the reasonableness of discretion in security matters and

must do so. From this it follows that there are no special restrictions on the judicial review of

administrative discretion in matters of state security”24.

Comparing the Court's demeanor in the 1950s and in the 1980s, Mautner notes that in the 1950s

the Court's liberal values made it a "cultural alien" in a society whose values he characterized as

"collectivist." Because of this divergence of values, the Court had to rely on formal arguments in

order to justify its decisions. By the 1980s, the Court's liberal values had come to be shared by a

significant segment of the society, the so-called "enlightened public," so that the Court no longer

had a reason to hide its liberal values behind a formalistic facade. The values of this "enlightened

public" (the Liberal Zionist camp) were increasingly referred to by the Court as a source of

legitimation for its decisions (Mautner, 1993; Navot & Peled, 2009). Gutwein acknowledges the

move from formalistic legal argument to value-based adjudication, yet provides a different

reasoning for the gradual change, noting that formalistic reasoning was “abandoned [by the

23 According to Mautner this was "opposed to legal formalist principals, according to which the judiciary should not make moral decisions" (p. 51). It should be noted that the process described by Mautner preceded the constitutional revolution of the Basic Law: Human Dignity and Freedom of 1992. 24 HCJ Schnitzer v. The Chief Military Censor 680/88 PADI 42(4) 617, section 26.

69

Court] as it was identified with the social welfare regime which had to be dismantled to allow for

a privatization” of the Israeli public sector” (2008, p. 53).

According to Barzilai, until the 1970s the Court involvement in civil-political and military-

security issues was marginal (Barzilai, 1999). By expanding the right of standing for public

petitioners during the 1980s the Court was able to rule on crucial issues, thereby increasing its

political and social influence (Dotan, 2003), taking a much more activist approach during the

1990s and the following decades (Meydani, 2011). The Court has enhanced its engagement in

what are perceived as political issues as a result of the enactment of the two 1992 basic laws,

which the court interpreted as granting it power to annul contradicting laws (Weinshall-Margel,

2011). In addition, the Court enhanced engagement in what are perceived as political issues may

have led to resistance: “In February 1999, the ultra-Orthodox leadership organized a mass rally

in Jerusalem attended by 250,000 people to protest against the 'encroachment' of the Supreme

Court in matters of religion and state” (Bick, 2001, p. 70). Attacks on the Court, following what

some Jewish religious groups perceived as controversial decisions, led to a loss of legitimacy

(Mautner, 2011). The Court’s loss of legitimacy among these groups was a consequence of its

role, becoming a “bastion” of the "enlightened public"’s quest for reason and sanity (Gutwein,

2008; Hirschl, 2010, p. 70). The articulation of "extra-legal" values by the Supreme Court has

been the subject of an intense debate in Israel. The role of values in the decisions of the Court

has been extensively discussed by Aharon Barak. Barak who served as a judge of the Supreme

Court for almost three decades and was also the Court's President, has been described as the most

influential Israeli legal jurist ever, a legal scholar whose influence far exceeds the bounds of the

legal sphere, and who was even considered "the Hassidic rabbi" of secular Jewish society in

Israel (Bendor & Segal, 2009; Ben-Naftali & Shany, 2003; Almog, 2002). Barak was also

portrayed by legal scholars as a “legal buccaneer”, obliterating the distinction between rule by

elected representatives and rule by judges (Bork, 2007; Posner, 2007; see also: Medina, 2007;

Barak, 2009). According to Barak, the non-accountability of the judicial position allows judges

to express deeply held social principles instead of the values of today's majority. Consequently,

the decisions taken by judges who follow this prescription are likely to be unpopular as they do

not reflect social ethos but rather deeper values, which, according to Barak, are democratic

principles (Barak, 2006).

70

During the 1990s, the most vocal opponent of the Court was the nationalist and orthodox

religious groups. These groups directed their attacks on the Court to the areas where economic

liberalization had the least effect: religious issues and the rights of non-Jews (Navot & Peled,

2009). The loss of Supreme Court legitimacy was not limited to Jewish religious groups, but was

also experienced in a later period, during the first decade of the twenty first century, by the

formerly hegemonic liberal group, due to resentment of the Court control over the judge

selection process, leading to a “moment of crisis” (Mautner, 2011, p.9).

The Court as a State Institution

The relations between Israeli judiciary and legislature echo those of the English legal system:

According to this system, the legislative branch symbolizes democratic sovereignty through the

principle of parliamentary supremacy (also known as parliamentary sovereignty). However, as

noted by Shachar, Gross and Goldschmidt, using “heavy cloaks of submissive language”, the

Israeli judiciary maintains full control of the normative content of issues disputed between the

judiciary and the legislature (2004, p. 244). Shachar, Gross and Goldschmidt note that the Court

utilizes judicial interpretation as well as original intent, two procedural tools, to maintain such

control.25

According to Aharon Barak, the substantive powers of the Court, as well as its independence,

have been enabled by the principle of non-accountability of Israeli judges (2002). One of the

most important mechanisms preserving Israeli judiciary independence is the Judges' Selection

Committee. The committee includes representatives from the judiciary, executive and legislative

branches as well as from the legal profession: members of the Israel Bar Association. Scholars

have noted the committee structure allows for a substantial degree of independence from

political influence (Shetreet, 1994; Kretzmer, 2002).

25 In comparison, in New Zealand, which, similar to Israel, derives its legal system from the English system, such judgments are considered beyond the reach of the judiciary. According to New Zealand’s interpretation of parliamentary supremacy, parliament's enactments are the ultimate source of law: what Parliament enacts cannot be unlawful (Butler, 2004). As noted by Judge Bruce Robertson of the High Court of New Zealand in Rothmans of Pall Mall (NZ) Ltd v Attorney-General [1991] 2 NZLR 323 (HC): “Parliament is supreme and the function of the courts is to interpret the law as laid down by Parliament. The courts do not have a power to consider the validity of properly enacted laws” (at p. 330).

71

The Court’s involvement in the judge selection process, given that three judges of the Court are

members of the Judges' Selection Committee, has led to the Court’s ability to significantly

influence appointment to the ranks of the Court itself. This has exposed the “political normative

system underlying the Court’s conduct”, leading to criticism of the Court and contributing to its

deteriorating status and legitimacy (Mautner, 2011, p. 165). The Eighteenth Knesset broke with

Knesset tradition, according to which the two members of Knesset who are part of the Judges'

Selection Committee are a member of the coalition and a member of the opposition – usually

from the opposition largest party. This resulted in selection of members of right-wing as well as

left-wing parties, irrespective of the coalition makeup. During the Eighteenth Knesset two right-

wing Members of Knesset were elected to the Judges' Selection Committee, by allowing a

selection of an opposition member from a small and radical right-wing party. This change has

coincided with a recent amendment to the law which has also contributed to court politicization

by altering a seemingly technical aspect of the Judges' Selection Committee. The amendment

requires the support of seven of the nine members of the Judges' Selection Committee to appoint

judges to the Supreme Court as compared to a normal majority of five previously needed.26 This

amendment has allowed three members of the nine-member committee to form a blocking

minority, preventing the decision to appoint judges to the Supreme Court who are not approved

by the politicians, or the judges, serving on the committee. In 2009, the four members of the

executive and legislative branches, all of whom were members of rightwing parties,27 utilized

changes in the rules of the Judges' Selection Committee to block the selection of judges to the

Court due to their perceived views regarding the occupation and the question of the legality of

the settlements (Izenberg, 2009).

Discussing the impact of the legislation of the Basic Law: Human Dignity and Liberty, Daniel

Gutwein offered a striking view: The clash between law and politics has been bogus as the Court

has not acted against the Knesset and the government but rather assisted them in furthering a

26 See: Courts Law [Consolidated Version], 5744-1984, Section 7(c). This amendment was passed by the Seventeenth Knesset and was initiated by the Likud MK, Gideon Sa'ar (as a private MK bill). According to Weinshall-Margel in the past the Court justices have been nominated “with a large majority of more than six committee members, and mostly with the full agreement of all committee members” (2011, p. 563). 27 Including former Minister of Justice, Yaakov Ne’eman, who is not a member of the Likud party, but was part of the minority block.

72

policy of privatization (2008). This may have changed since the period of the Court’s

jurisprudence which we examine here.

The Coercive and Persuasive Powers of the Court

The significance of the Court as an institution of the state, or, to borrow Louis Althusser's term,

as an Ideological State Apparatus (Althusser, 1971), stems also from its social, non-coercive,

powers. The Court has enjoyed the trust of Israeli Jewish society in the past, more than any other

state, public, or private organization (Barzilai, Yuchtman-Yaar & Segal, 1994). According to the

legal realism school of legal philosophy, the court can be regarded as a “political institution

aspiring to increase its political power” (Meydani, 2011, p. 28). According to Barzilai, by doing

so courts adopt policies of self-restraint and deny themselves full autonomy (Barzilai, 1999).

A significant number of studies have concluded that legitimacy is important to legal institutions,

because individuals are more likely to voluntarily adopt the norms of such institutions to regulate

their own conduct when the institutions are perceived as legitimate (Tyler, 2006; Ford, 2012).

The issues of legitimacy of the judiciary and voluntary adoption of norms are at the core of the

present research: unlike other social and cultural mechanisms, such as the media, poetry, theatre

or even textbooks, the most significant aspect of the Court's social influence stems from the

coercive powers of the judiciary, rather than from the persuasive potential of the judicial text.

This issue echoes the debate between two prominent legal scholars, James Boyd White and

Robert Cover, representing two interpretative approaches to the judiciary. White, who is credited

as the founder of the 'law and literature' movement, or the study of law as literature, argues that

the legal text, the judicial decision, is involved in the construction of meaning for a community

of readers. Law and literature should therefore both be regarded as compositional activities,

which cannot be summed up in a mere sentence but must be read in its full meaning. While

acknowledging the importance of the legal text and therefore of the textual interpretations,

Cover's critique of White stems from his view of the objective of the legal interpretation, the

need to observe actions rather than declarations: We need to begin our interpretation, suggests

Cover, "not with what judges say, but with what they do". Cover notes that the essential tension

in law as profession is to be found between "the elaboration of legal meaning and the exercise of

73

or resistance to violence of social control" (Cover, 1986, p. 1602). According to Cover, literary

texts lack the coercive, violent power which is an essential and defining ingredient of the legal

text. Hence, the interpretation of legal texts should reflect this radical difference between law and

literature .

The Court and the Conflict – Legal Aspects

The evolving legal functions of the Court in relation to the conflict with the Palestinians reflect,

to great extent, the history of the conflict: During the early 1950s the Court dealt with cases

related to the plight of Palestinian refugees. During 1949-1966 the Palestinian citizens of Israel

were subjected to military control and the Court dealt with issues such as land confiscation,

travel permits, curfews, administrative detentions, and expulsions. During the 1960s the Court

played a key role in the government’s successful attempt to limit the civil Arab movement, al-

Ard. While the lifting of military control in Israel itself has improved the lives of Arab Israelis,

they have suffered from deep-seated discrimination. The Court has addressed a growing number

of petitions regarding systematic discrimination against Israeli Arab citizens. Following the 1967

occupation of the Palestinian Territories, the Court has adjudicated key aspects of the

occupation.

The Court and the Palestinian Citizens of Israel

The issue of the Court and the Palestinian citizens of Israel (or Israeli Arabs) has been dealt with

by Israeli researchers.28 While several scholars have written about Arabs in Israel and the Court

or the Israeli judiciary in general, some have chosen to focus on distinct issues, for example, the

land rights of Bedouin in the Negev (see, for example: Shamir, 1996; Kedar, 2004) or the El-Ard

movement (see, for example: Harris, 2001, 2004). Some scholarly writings have focused on a

single Court decision regarding the Palestinian citizens of Israel (see, for example: Jabareen,

2001; Kedar, 2001). Legal scholar Alexandre Kedar's research on the genealogy of Israeli land

law during 1948-1967 provides many examples of the way the legal system is not satisfied with

maintaining the status quo, but acts to gradually erode land rights of the Arab minority in Israel.

28 See, Saban, 2005 note 1, for a comprehensive list of articles and books on this issue.

74

This is done mainly through the application of legal procedures used to create and maintain an

aura of legality for what is essentially a political process. As noted by Kedar: "Much

legitimization is effectuated through a heavy dose of technical, seemingly scientific language as

well as through methods embedded in rules of procedure and evidence. The discrimination

against the non-settlers often is masked by the construction of seemingly ‘neutral’ legal

categories" (2001, at p. 929).

For a period of more than seventeen years (from October 1948 until 1966), applying British

Mandatory emergency regulations the government maintained military government over most of

the areas in which Arabs lived. While potentially granting “near limitless” executive power over

the Arab population (Saban, 2011, p. 326), by 1962 the military rule had lost much of its potency

with regard to the Arab population (Lyn, 1999; Bäuml, 2007, 2011). Yet even several decades

after the end of military rule and despite Israel’s apparent commitment to equal treatment of all

its citizens, the Israeli legal system has continued to allow three types of discrimination (overt,

covert and institutional) against Arab citizens (Kretzmer, 1990). The Court played a crucial role

in supporting the mechanisms of separation and discrimination against Israeli Arabs by stressing,

in a number of cases, that discrimination is not itself sufficient cause to warrant remedy (Saban,

1996, 2011). A different view of the Court’s role with regard to Palestinian citizens’ quest for

equality is presented by former Supreme Court Justice, Yitzhak Zamir, who discusses Court

cases, starting with two early 1970s decisions, in which discrimination against Israeli Arabs was

ruled as unlawful by the Court (Zamir, 2005). Similarly, Ben-Zvi noted that the Court has played

a key role in constraining the government’s efforts to infringe upon core democratic rights (such

as the right of free expression), which has guaranteed that, even under the shadow of continued

Arab-Israeli conflict and its domestic repercussions, the Jewish state has remained largely

committed to the democratic values (2005).

The legal biography of the al-Ard (“the Land”) movement is a prime example of the Court’s

decisions not to intervene in key issues related to Israeli Arabs and their relationship with the

state. Al-Ard was a small Arab-Palestinian national movement with a pan-Arab orientation that

enjoyed only a short life span, from the late 1950s until it was disbanded by the Minister of

Defense in 1965. When the Ministry of Interior’s Northern District Commissioner closed down a

75

newspaper published by al-Ard,29 the groundbreaking Kol Ha’am ruling was not regarded by the

Court as a relevant precedent (Harris, 2001; Saban, 2011).

According to Saban, the Court left the Israeli government barely constrained: regarding

"security, demographics (immigration and naturalization), and land - both the legislature and the

judiciary showed special leniency toward the executive” (2011, pp. 324-325). The Court offered

limited, if any, protection of human rights to Israeli Arabs with regard to issues at the core of the

conflict with the Palestinians (Saban, 2011).

Since the mid-1990s, Israeli human rights organizations, led by Adalah, the Legal Center for

Arab Minority Rights in Israel, which was founded in 1996, and the Association for Civil Rights

in Israel, have attempted to challenge Israeli Arab socioeconomic and political status, petitioning

the Court as the High Court of Justice. In certain cases protection provided by the concept of

human dignity as it appears in Basic Law: Human Dignity and Liberty has enabled the Court to

support certain group-differentiated rights (Saban, 2004). For example, the Court required

municipalities, all of which contain an Arab-minority population, to ensure that municipal signs

in their communities be in both Hebrew and Arabic, to ensure that municipal signs be written in

Arabic, and not only in Hebrew. Justice Barak cited (in paragraph 50) article 1 of the Basic Law:

Human Dignity and Liberty regarding Israel’s status as a Jewish and Democratic State.30 In

another decision the Court held that the Ministry of Religious Affairs is to operate on the basis of

the principle of equality in allocation of funds regarding budget for cemeteries.31

Yet other decisions of the Court regarding Israeli Arab rights following the legislation of Basic

Law: Human Dignity and Liberty, paint a more complex picture: The Israeli Supreme Court's

decision in the Ka'adan case,32 which ruled that a family of Palestinian Arab citizens of Israel

could not legally be denied the right to purchase a house in the locality of Katzir, established by

the Jewish Agency on state land allocated for establishment of a communal settlement, hailed as

Israel's Brown v. Board of Education for its approach to discrimination against Arabs in Israel

29 HCJ 39/64 PADI 18(2) 340. 30 HCJ 4112/99 Adalah, et. al. v. The Municipalities of Tel Aviv-Jaffa, PADI 56(5) 393. 31 HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs, PADI 54(2), 164. 32 H.C. 6698/95, Ka'adan v. Israel Land Authority, 54(1) P.D. 258.

76

(Mazie, 2004), was regarded by many as a change in the attitude of the Court towards the rights

of the Arab minority.33 Relating to the court's ways of legitimating this ruling, Aeyal Gross notes

that the very argumentation that was traditionally used by Israel to deny the rights of the Arab

citizens, in previous cases, was used in Ka'adan to reinforce the same rights (2004, at p. 671).

The Ka'adan decision did not attempt to break ranks with the long term land policies described

by Kedar. Indeed, it was criticized for legitimizing previous discrimination against Arabs in

Israel, as well as for failing to address issues of transitional justice (Gross, 2004) by failing to

own up to the history of Israel as a history of injustice (Jabareen, 2001). Another significant

decision, which has failed to remedy entrenched discrimination of Israeli Arabs, is Adalah v.

Minister of Religious Affairs.34 In this decision the Court was asked to declare unconstitutional

four provisions of the Knesset Budget Law (1998), which allotted only 1.86% of the total $400

million budget of the Ministry of Religious Affairs to Arab religious communities (Muslim,

Christian and Druze) combined. Adalah argued that as the Arab minority constitutes about 20%

of the population, this disproportionate budget allocation violated the principle of equality. The

Court ruled that the petitioners failed to establish that "substantive inequality" exists; for this,

according to the test articulated by the Court for the first time, it is necessary to examine the

religious needs of each religious community. Thus, the Court decided that the petition was too

general, and that the petitioners' requested remedy - to allocate funds commensurate with the

Arab community's percentage of the population - would entail the appropriation of legislative

powers by the Court.

According to Doron Navot and Yoav Peled, given the context of an active peace process and the

generally liberalizing atmosphere in the 1990s, Israel's judicial system, and especially the Court,

began to show signs of greater respect for the rights of the Palestinians, citizens and non-citizens

alike. The failure of the Oslo process led to a backlash against the Court's obsession with the rule

of law and individual citizenship rights (2009).

33 Kedar notes that the decision is "the first time that Israel could not discriminate between Arab and Jewish citizens in their access to public land. This decision, though limited, may signal the beginning of a shift in the attitude of Israeli law toward its Arab minority in connection to land rights," (Kedar, 2001, pp. 999-1000). Referring to the Supreme Court ruling in Ka'adan, Aeyal Gross notes that "Israeli case law (...) has made nominal progress toward formal equality in land distribution". (2004, at p. 89). 34 HCJ 240/98 PADI 54 (2) 167.

77

The following section will examine key legal aspects of what is arguably the most important role

of the Court with regard to the conflict post 1967 – Israel’s occupation of the Palestinian

Territories.

The Court and the Occupation of the Palestinian Territories

The scope of Court decision-making in relation to the conflict with the Palestinians was greatly

expanded following the Six Day War of 1967, in which Israel took over areas inhabited by a

large Palestinian population. The Court decided that it had jurisdiction over the occupying

military commanders and their actions in the occupied Palestinian territories. According to

Kretzmer, “During the first decade of occupation some attempts were made to challenge actions

of the military before the Supreme Court of Israel, and some important decisions were handed

down. However, petitions to the Court by residents of the Occupied Territories were few and far

between” (2002, p. 8). While, according to Reichman, establishing the jurisdiction of the Israeli

Supreme Court over the activities of the military commanders could have been seen as a step

towards the annexation of the territories, it is hard to see how Israel could have consistently

refused to review the actions of its military commanders given relevant public international law

(Reichman, 2001). Since the beginning of the 1970s, the Court has ruled that its judicial

authority applies to the regions under occupation, despite the fact that most of these areas have

not been annexed to the State of Israel (Barzilai, Yuchtman-Yaar & Segal, 1994). According to

Barzilai, judges could not stay aloof to the centrality of the issues related to Israeli rule over

these occupied territories, nor could they evade the legal crisis that soon erupted regarding

Israel’s control over the hostile population (Barzilai, 1998).

The access to justice provided by the Court to Palestinian residents of the occupied territories has

placed it in a central position regarding the conflict, coinciding with the increasing weakness of

the Israeli legislative branch. As noted by Shamir, the “highly controversial” nature of Israel’s

policies in the Occupied Territories is at the core of a process of transformation of political issues

to legal ones (1990, p. 784). This has led the Court to become a major state institution dealing

with the ramifications of the activities of the military authorities in the occupied territories. It has

been argued that for the first two decades of the occupation, the Court was the sole state

78

institution which reviewed this issue (Rubinstein, 1988). Kretzmer notes that the task of the

Court is impossible in some respects: “Involving a domestic court in adjudicating disputes

between military authorities and residents of the occupied territory assumes an element of

neutrality between the parties that cannot exist in such a situation” (2002, p. 197). Further

criticism of the Court’s involvement with the occupation of the Palestinian Territories is voiced

by scholars and human rights lawyers, according to which litigation before the Supreme Court

regarding human rights violations by Israeli military in the Occupied Territories has played a key

role in exposing the intricacies of Israel's oppression of Palestinians in the Territories (Bisharat,

2008) as well as the gap between the Court decisions and international legal norms which

becomes part of the historical record (Cavanaugh, 2008, Shamir, 2008).

The 1967 occupation of the Palestinian Territories created a potential dissonance within the

Court, given the difference between ‘regular’ jurisprudence of Israel and that of the occupation:

the role of the Court also has raised questions as to how it can balance security arguments and

individual human rights (Kretzmer, 2002).

The right-wing Likud party, led by Menachem Begin, which won the 1977 national elections in

Israel, brought with it a radical change in government policies with regard to the Occupied

Palestinian Territories. Begin’s government actively promoted establishment of civilian

settlements in all parts of the Occupied Territories. From the 1980s onward, petitions against the

military government and area commanders filed in Israel's Supreme Court in its capacity to apply

judicial review with respect to actions undertaken by Israeli government organs became a

“growing source of cases” filed by Palestinian residents of the Occupied Palestinian Territories

(Karayanni, 2008, p. 696). According to Kretzmer, petitioning the Supreme Court in an effort to

curb government actions in the Territories “began to gain wide acceptance” in the period soon

after the Begin government came to power, in 1977, (Kretzmer, 2002, p. 8). During the first

Intifada (the Palestinian uprising) which began in December 1987, hundreds of petitions were

submitted to the Court, generally challenging the legality of security measures.

79

The Court Use of International Law and the Occupied Territories

A short while after the occupation of the Palestinian Territories, Israeli lawyers appearing before

the Court began to use international belligerent occupation law, a part of international

humanitarian law, in their arguments (Sfard, 2003). According to Sfard, the uniqueness of the

Israeli occupation – since the Second World War, no claim had been made to apply international

belligerent occupation law on such a large territory – led the justices of the Israeli Supreme Court

down an uncharted road.

With respect to the Court’s jurisprudence, the Hague Convention35 has been held by the Court to

be domestically enforceable, as it is generally regarded as customary international law, which

forms part of Israeli internal law.36 According to Article 43 of the Hague Regulations, the

occupant shall take “all the measures in his power to restore, and ensure, as far as possible,

public order and safety, while respecting, unless absolutely prevented, the laws in force in the

country”. However, according to Kretzmer the Court's interpretation of this article, "has stripped

the restrictions on legislative changes of any significant meaning" (2002, p. 63; see also 2012).

With regard to the Fourth Geneva Convention,37 while the Court has refrained from ruling on the

Convention's formal applicability to the Occupied Palestinian Territories, it has held that in all

events certain provisions of the convention are not part of customary international law and may

therefore not be enforced by the Court.38. Even so, the Court has been prepared to assess whether

actions of the military are compatible with the Fourth Geneva Convention, while not formally

deciding either whether the Convention applies de jure, or whether the relevant provisions are

reflective of customary international law (Kretzmer, 2005; see also Watson, 2005; Ronen, 2013).

Kretzmer notes that while fear of a negative reaction from the post 1977 Likud pro-settlements

government did not prevent the Court from examining the legality of specific settlements on

35 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907. 36 HCJ 606/78 Ayub v. The Minister of Defense (the Beth El case); HCJ 606/78 Matawa v. The Minister of Defense, PADI 33(2) 113. 37 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. 38 Following English law, according to the jurisprudence of the Court, international conventions that bind the state will not be enforced by the courts unless their provisions have become part of customary law or have been incorporated in domestic law through legislation.

80

narrow grounds, the Court refused to rule on the legality of settlements under Article 49(6) of the

Forth Geneva Convention (2005, p. 90)39.

The Court’s decisions and argumentation have been widely criticized by international law

scholars, for various reasons. The following will briefly discuss some of these concerns: First,

Israel's official position vis-a-vis international law of occupation has varied considerably,

depending on whether one is discussing political statements made by the Government of Israel or

jurisprudence of the Court, sitting in its capacity as a High Court of Justice. As noted by

Kretzmer, “[T]here is a clear disparity between the political stance taken by the governments that

have held power since 1967 and the stance taken by their lawyers when appearing before the

Supreme Court” (Kretzmer. 2002, p. 197; see also: Harris, 2008).

Second, as noted by Kretzmer, when the Court first considered who was included in the local

population it regarded settlers as part of the local population, thereby eroding the protection

awarded by international law to the Palestinians:

“the HCJ ignored the notion of ‘protected persons’. Hence, when judging the welfare of the local

population in the Hebron Electricity case, the Court declared that ‘for this purpose the residents

of Kiryat Arba [an Israeli settlement constructed on the outskirts of Hebron] must be regarded as

having been added to the local public, and they are also entitled to a regular supply of

electricity’. This approach was retained by the Court in later years, even when it mentioned the

Occupying Power’s duty towards protected persons” (2012, pp. 212-3).

It should be noted that according to Article 4 of the Fourth Geneva Convention persons protected

by the Convention are those who, “at a given moment and in any manner whatsoever, find

themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or

Occupying Power of which they are not nationals”. Therefore, nationals of the occupying party

(such as Israeli settlers) are not protected by the convention.

39 According to article 49(6) “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

81

Yet another critique of the Court’s use of international law is offered by Michael Sfard:

According to Sfard, the Court has changed its positions with regard to international humanitarian

law as the international legal community made it impossible to continue to seemingly resolve

questions stemming from international humanitarian law by “drowning” it in Israeli law and

judicial interpretations (2003, p. 174). The Court’s revised position, which reached its peak

during the second Intifada, was to reject, at times, completely, international humanitarian law

(Sfard, 2003).

According to the writings of Benvenisti and Karayanni significant concerns were raised with

regard to the Court’s use of international law norms: The premise guiding the Court in this

respect was that international law norms, applicable to a belligerent occupant, delimit only the

powers of the military government, yet not those of the government of the occupant (Benvenisti,

1989; Karayanni, 2008). The Court has never carved out special rules for war-related

jurisprudence that could limit the scope of judicial review of military action. On occasion,

however, the Court has set limits to general policies or specific measures of the military

(Benvenisti, 2003), yet by striking down egregious conduct by the military commander, and only

that conduct, some argue the Court has de facto allowed the settlement project to proceed

(Reichman, 2001).

The Court has been willing to review security considerations which, given the doctrine of

institutional non-justiciability, could have been left outside Court jurisdiction (Kretzmer, 2002;

Barak, 2002). However, the Court has always shown deference to the government’s security

claims (Benvenisti, 2003): Judicial activism, which has often been mentioned with regard to the

legal worldview of the Court, has not crossed over to the other side of the Green Line, an

expression originally coined by the late legal scholar, Leon Sheleff, (1993; see also Kretzmer,

2002; Sfard, 2003).40

40 It should be noted that this critique may no longer be valid given changes manifested by recent Court decisions.

82

The Court and Personal Jurisdiction

A major aspect of Court policies regarding the conflict in the post-1967 period was its

involvement in the creation of de facto separate legal systems in the territories, one for Israelis

settlers and the other for Palestinians residents (Human Sciences Research Council, 2009). There

is no pretense of equality between the two separate systems of law. One expression of the

Supreme Court policies in this regard is related to the Israeli Basic Laws, including the Basic

Law: Human Liberty and Dignity. The Court has suggested that this Basic Law applies to the

settlers, as they are citizens of Israel residing in the occupied territories, noting that jurisdiction

with regard to the Basic Laws "is personal".41

Another expression of this lack of equality was manifested by the military commander's Order

on Administration of Municipal Councils (Judea and Samaria) (No. 892) 5741-1981. Scholars

Paz-Fuchs and Ronen, who have studied the order in the context of labor law applicable to

Palestinian residents of the West Bank employed in Israeli settlements in the West Bank, note

that unlike the extraterritorial legislation, which derives from Israel’s sovereignty, the powers of

the Military Commander derive from international law. They may therefore more easily be

scrutinized in light of international standards regarding non-discrimination (Paz-Fuchs & Ronen,

2012).

The issue of personal jurisdiction has been researched by law scholar, Michael Karayanni who

notes that the Israeli courts have undertaken creative measures in modifying existing personal

jurisdiction rules in the context of civil actions related to residents of the occupied territories,

separating Palestinians, whose claims have been rejected by the Israeli judicial system, and

Israeli settlers, who have been treated by the courts as Israeli civilians residing in Israel through

the use of various legal mechanisms (Karayanni, 2008). While the Security Provisions Order

(West Bank region) published on 7 June 1967 by the military commander of the Israeli Defence

41 H.C.J. 1661/05, The Gaza Coast Regional Council Case v. The Knesset, at Section 80. See also, HCJ 7957/04 Mara’abe v. The Prime Minister of Israel, section 22: "[T]he scope of the human rights of Israeli living in the area, and the level of protection of the right, are different from the scope of the human right of an Israeli living in Israel and the level of protection of that right. At the foundation of this differentiation lies the fact that the area is not part of the State of Israel. Israeli law does not apply in the area. One who lives in the area lives under the regime of belligerent occupation." [ אינני רואה כתב מוטה Italics appear in the original text. O.S.L.].

83

Forces in the West Bank42 preserves military courts' jurisdiction over all acts which harm or are

intended to harm the security of the West Bank, since the early 1980s Israel Attorney-General's

policy has been to prosecute Israeli nationals and residents, including settlers who reside in the

Occupied Territories, who are charged with offences committed in the occupied territories,

before Israeli courts (Ronen, 2013). Former Attorney General of Israel, Michael Ben-Yair, has

expressed his opinion that the existence of dual Israeli legal systems, one for Israel and the other

in the occupied territories, constitutes an apartheid regime (Ben-Yair 2002; Kimmerling, 2002).43

Regarding the term 'apartheid' Ben-Naftali, Gross and Michaeli note that, "it is sufficient to

conclude that, inasmuch as the legal structure of the occupation regime is designed to - and in

fact does - serve the interests of the settlers at the expense of the interests of the occupied

population, it breaches the obligations of the occupant under Article 43 of the 1907 Fourth

Hague Convention, thus violating the basic tenet of trust inherent in the law of occupation”

(2005, p. 588).

The Supreme Court and the Conflict – A Social and Political Perspective

The following and final section of this chapter addresses social and political functions of the

Supreme Court with regard to the conflict with the Palestinians. These functions reflect three

aspects of the Court as an institution, all of which are discussed in previous sections of this

chapter: first, the Court is the highest court in Israel; second, it is well respected by Jewish Israeli

society and third, it deals with some of the most complex and sensitive aspects of the conflict.

42 Compilation of Proclamations, Orders and Appointments of the IDF Command in the West Bank Area No 1(1967), 5. 43 According to a recent report by the Human Sciences Research Council of South Africa "Israel exercises control in the OPT with the purpose of maintaining a system of domination by Jews over Palestinians and that this system constitutes a breach of the prohibition of apartheid". According to Article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid the term 'the crime of apartheid', which shall include similar policies and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them: (c) Any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including the right to work, the right to form recognised trade unions, the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of movement and residence, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association;

84

While other political and social institutions can often disregard or distance themselves from

morally objectionable aspects of Israel’s involvement in the conflict, the Court seldom has such a

privilege: judges have stressed that the Court’s involvement in public life is strictly dependent on

the nature of the cases brought before it. Thus in an interview with Chief Justice Meir Shamgar,

he stressed that the Court does not invite claims nor does it use cases in an “attempt to resolve

issues which are not related to the matter before the court” (Har Zahav, 1993, p. 11).

The following section focuses on three main subjects, which have been discussed extensively by

scholars: security as a societal belief and the Court, the Court legitimization functions and finally

the Court and the executive branch.

Security as a Societal Belief and the Court

Scholars of the Court have stressed the importance of security as part of the Court argumentation

with regard to judgments related to the conflict with the Palestinians. As noted in chapter II,

societal beliefs regarding security are a cultural master-symbol of Israeli Jewish society: one of

the most important clusters of beliefs which make up the ethos of the conflict for the Israeli

Jewish society. Scholars who have researched the Court's use of security based argumentation,

have noted that the Court has often referred to such claims, made by security authorities during

the judicial deliberations, as the ultimate basis for its rulings (Sheleff, 1993; Shamir, 1990). As

noted by Barzilai in 1999, the Court has operated under the constraints of two national

narratives: Jewishness and national security. In adjudicating controversial issues, the Court has

sought to preserve its public image as a majoritarian, Jewish, and security-minded institution.

Hence, while the political setting has been highly fragmented and polarized, the Court has not

challenged any major tenet of the Israeli political regime, nor has it altered any fundamentals of

the Jewish character of the state, or questioned the military regime in the territories or the

dominance of security considerations in Israel's public life (Barzilai, 1999, p. 29). It is doubtful

whether the Court’s approach regarding to security considerations differs from that of courts in

other democratic countries which address security issues (Alexander, 1984; Davidov &

Reichman, 2010).

85

This trend become aggravated at times of crisis: as noted by legal scholar, David Cole, “the

conventional wisdom is that courts function poorly as guardians of liberty in times of crisis.”

(2003, p. 2565). However, Cole also notes that “[b]ecause emergency measures frequently last

well beyond the de facto end of the emergency, and because the wheels of justice move slowly,

courts often have an opportunity to assess the validity of emergency measures after the

emergency has passed when passions have been reduced and reasoned judgment is more

attainable. In doing so, courts have at least sometimes been able to take advantage of hindsight to

pronounce certain emergency measures invalid for infringing constitutional rights” (2003, p.

2566). In his discussion of the American judicial system response to the September 11th attacks

on the United States, Cole notes that the attacks have placed tremendous pressure on judges:

While initially a surprising number of judicial decisions “upheld claims of constitutional rights

against official antiterrorist measures”, as time went on, “courts increasingly deferred to

government claims of national security” (2003, p. 2578). This view corresponds with the view of

United State Supreme Court Justice, William J. Brennan, Jr. In a speech given in late 1987,

Justice Brennan notes that the US Supreme Court (and the United States as a state) “has a long

history of failing to preserve civil liberties when it perceived its national security threatened

(1988, p. 11). A similar perspective is offered by legal scholars, Oren Gross and Fionnuala Ní

Aoláin, who note that national courts “consistently fail to live up to the challenge of being

particularly vigilant in protecting rights in times of emergency" This failure is not unique to "any

one country or to any particular period in a nation's history" (2006, p. 265).

Scholars have noted that Court judgments regarding the conflict with the Palestinians have not

demonstrated liberal values: the Court, while using rhetoric promoting human rights, sacrifices

basic civil liberties for claims of national security (Kretzmer, 1993, 2002; Shamir, 1990; Kuttab,

1992). According to Barzilai and Kimmerling, the Court has defended the Jewish ethno-national

interest, as constructed and presented by the government, by primarily using a very simple, yet

effective technique: the manner in which the term “security” has been used and interpreted. First,

for most of the researched period the state has justified its actions or inaction under the aegis of

“security needs” or “security reasons”—in nearly all cases, the court accepted this explanation

without any further investigation of the matter (Barzilai, 1998; Kimmerling 2002, p. 1131).

During the final years of this research this approach has changed significantly, as noted by

86

Kretzmer in 2012: “Over the last decade, the notion of proportionality has played a major role in

the way that the Court has reviewed the actions of the military authorities” (p. 208).44

Aware of this criticism, former Chief Justice Barak has noted that "'security' is not a magic word:

The Court examines whether security was indeed the true consideration and also asks whether

this consideration meets the applicable legal criteria" (Barak, 2006a, p. 24). According to

Michael Lynk, The Court's reputation for judicial liberalism is mostly derived from its rulings in

the area of civil rights in Israel, “where it has issued affirmative judgments in cases involving

women and sexual orientation, freedom of expression, the environment, and personal freedoms.

However, its substantial body of decisions on the occupation tells quite another story (Lynk,

2005, p. 8).

The Court’s Legitimization Functions

The following section departs from the general theme of the chapter, focusing on the Court

legitimization functions (in the sociological sense) including the role of the Court’s positions on

security, as arguments of security have played a major role in the Court’s efforts to legitimate the

actions of the State.

Scholars have often discussed the Court’s contribution to the legitimacy of Israel’s policies

regarding the conflict with the Palestinians or to the manner in which the Court promotes its own

legitimacy or that of the Israeli judiciary. In both cases the identity of the group who should grant

legitimacy is vital: Kretzmer points out that the legitimacy emanating from the Court’s action is

aimed at both the Israeli public, as well as foreign observers sympathetic to Israel’s basic

position, rather than the Palestinian residents of the Occupied Territories (2002). In the context

of Israel’s policies regarding the conflict with the Palestinians scholars have argued that the

Court will never succeed in making the occupation legitimate from the perspective of

Palestinians and the international community, whatever decisions it may deliver (Adalah, 2008).

44 For example, the 2004 Beit Surik case regarding the route chosen for construction of the West Bank Barrier (or “separation fence”) is reflective of the Court’s new approach: given the injury caused by the separation fence to the lives of local Palestinian population, the Court ordered a renewed examination of the route of the fence, according to the standards of proportionality that the Court has set out. HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel, PADI 58(5), 807. See also: HCJ 2150/07, Abu Safiyeh v. Minister of Defence.

87

The manner in which the Court has sought to legitimize the state’s policies with regard to the

Israeli Arabs is intricate and, at times, far from obvious: Kimmerling notes that the Supreme

Court is one of the central mechanisms managing the Palestinian-Israeli conflict (2002): as it

extends “help and protection against the arbitrariness of the government regarding its Arab

subjects”, while it does not protect civil and human rights, but also “constitutes one of the most

sophisticated tools of repression employed since the State of Israel was brought into being.”

(2002, p. 1128). The Court frequently acted as the “good guy” and emerged with surprisingly

courageous decisions, thereby lending the state’s control framework of the Israeli Arabs “a

modicum of legitimacy” (Saban 2011, p. 343) by “encouraging a belief in the potential for

improvement” for Israeli Arabs (Saban, 2011, p. 367-8).

The Court may have received praise from the international community for decisions which

delegitimized the Court in the eyes of Israeli Jewish society, for example with regard to the

Court’s 1999 decision45 prohibiting the use of various means of torture that were systematically

employed by the Israeli General Security Service, and the 2000 decision,46 which disallowed

Israel’s security forces’ habit of holding Lebanese civilians in administrative confinement as

‘bargaining chips’ (Seidman, 2010). The Court's judgments were, to at least some Israeli Jewish

members of society, an embodiment of international legal standards rather than Israeli ones,

which may had a negative influence on its legitimacy.

Security based arguments made by the representative of the state have had a similar effect on the

Court's opinions as the societal belief regarding security has had on Israeli Jewish society:

According to psychological research, societal beliefs which are part of the ethos of the conflict

are indicators of societal integration and social cohesion (Epstein, 1978; Bar-Tal & Oren, 2000).

Therefore, by accepting security arguments made by the representative of the state at face value,

the Supreme Court is likely to have legitimized its own position within the Israeli society, which

does not question security beliefs at the core of society’s ethos of the conflict. It can further be

observed that by adopting an unwritten policy of not reviewing security needs arguments made

by representatives of the state, a policy that has been in place for many years, the Court has

45 HCJ 5100/94 The Public Committee Against Torture in Israel v. The Government of Israel, PADI 53(4) 817. 46 Further Hearing 7048/97 Anonymous v. The Minister of Defense, PADI 54(1) 721.

88

allowed these arguments to become an important source of legitimacy for the actions of the

military government in the occupied territories. According to scholars, and reflecting some of

this research period, the Court has thus provided an example of the effectiveness of societal

beliefs as social lenses through which members of a given society look at their own society:

Societal beliefs attribute meaning to the society's past and present and can also serve as a basis

for societal action (Giddens, 1984; Bar-Tal, 2000).

The following sections will discuss two aspects of legitimacy and the Court: first, the way the

Court has sought to legitimize the actions of Israel in the context of the conflict with the

Palestinians. The second part will examine how the Court’s adjudication of cases related to the

conflict with the Palestinians may have played a positive role in the Court’s efforts to legitimize

itself as an institution.

The Court and the Legitimacy of the State’s Actions

Scholars have often discussed the various ways the Court’s decisions regarding the conflict have

legitimized state actions, the actions of the military, the Court or the Israeli legal system: For

example, discussing the role of the Court in cases relating to Palestinian violence against Israelis,

Hofnung and Margel note that the judiciary is a political institution, intended, among other

things, to ensure public trust in policy decisions of the State’s institutions (2010).

According to Shamir's study of the political role of the Court, Israeli legal scholars have

presented the Court as an independent player, and consequently, as a defender of the humanistic

character of the military control of the occupied territories (see, for example, Negbi, 1981). This

image has served to legitimize the actions of the government in the occupied territories. Shamir

argues that the perceived conflicts and disagreements between the court and the government are

disputes over areas of jurisdiction rather than a reflection of ideological differences (Shamir,

1988).

The Court has performed a vital role with regard to the Israeli government efforts to legitimize

its actions in the occupied territories: The legal system has been used repeatedly to review the

89

contradictions between a potentially liberal democracy and the realities of a military occupation

against an unwilling and resentful Palestinian population (Barzilai, 1998). Furthermore, the

Court's perceived image as a guardian of the rule of law has lent itself to the creation of the

euphemistic image of an enlightened occupation (Gazit, 2003; Zertal & Eldar, 2009). According

to Gazit, the Court decision to receive petitions of Palestinians residents of the Occupied

Territories has reflected the need to generate legitimacy for Israel's actions with regard to the rest

of the world, which closely follows every move made by Israel (Gazit, 2003). The limited

chances of winning a case before the Court have led some to re-evaluate the benefits of

petitioning the Court. As noted by Adalah, the Legal Center for Arab Minority in Israel, it can be

argued that continuing to bring petitions to the Israeli Supreme Court might be considered as

legitimization of the Occupation. Additionally, Adalah notes that the rhetoric employed by the

court differs dramatically from the actual results of its decisions. Thus, while the judicial rhetoric

often suggests that justice has been done, the Court’s decisions in fact serve to uphold the Israeli

army’s gross violations of human rights (2008). On the other hand, using the term "court's

shadow," Kretzmer offers a comprehensive discussion of the Supreme Court's hidden influence,

restraining Israel's actions in the occupied territories: "[T]he Court has often forced the

authorities to reconsider planned action or to compromise with the petitioner. Sometimes

pressure on the authorities is the direct result of remarks made by judges during a hearing (…) In

other cases, issuance of an interim injunction by the Court, pending a final decision in the case,

has allowed time for public opinion to force the authorities to reconsider their opinion. The

authorities frequently back down or compromise before the matter reaches court" (Kretzmer,

2002, pp. 189-90).

The Conflict and the Court’s Own Legitimacy

Supreme Court Justice Dalia Dorner points to two of the most crucial aspects of the Court with

regard to the Israeli society. First the judicial branch is “the weakest branch” and second, it

draws its powers from “public trust and the legitimacy of its decisions” (Dorner, 2006, p. 428;

see also: Meydani, 2011). Due perhaps to the Court’s self-perception of institutional weakness,

as compared with the significant powers of the Israeli government, Shamir notes that the Court

has only rarely legitimized its decisions, projecting an image of an independent institution, by

90

ruling in favor of Palestinian residents of the occupied territories in a few "landmark" cases

(Shamir, 1990). A somewhat different view is offered by Barzilai, who stresses the uniqueness of

such “landmark" cases, as well as their lack of ability to influence the Palestinian population's

perception of the Supreme Court as a limited means to halt the machinery of control (Barzilai,

1998). One example of a Supreme Court decision which favored Palestinian landowners'

interests over those of Israeli Jewish settlers was the Elon Moreh judgment,47 in which the

Supreme Court ordered the evacuation of settlers, reversing a land requisition decision by the

administrative branch .

Another view of the landmark decision regarding Elon Moreh suggests that it strengthened the

faith of Arab Israelis in the Israeli legal system, proving that the Court could overcome all

political considerations (Stendel, 1992). According to Barzilai, similar decisions have even

succeeded in convincing the Arab population in Israel that the Supreme Court was the guardian

of the Israeli democracy (Barzilai, 2004). In several key judgments delivered in the last decade

of this research, the Court has placed significant constraints on the Israeli authorities: One

notable example is the "Neighbor Procedure"48 judgment, prohibiting the IDF from using

Palestinian civilians to order other Palestinians to leave their houses.49 Chief Justice Barak's

opinion was unequivocal: "The 'Early Warning' (Neighbor) procedure is at odds with

international law. It comes too close to the normative 'nucleus' of what is forbidden, and can be

found in the relatively grey area (the penumbra) of what is improper" (Section 25). This decision

marked the first time, the Supreme Court categorically forbade the use of a military procedure

(Chouchane, 2009).

Kretzmer’s critical analysis of the Court’s involvement in the occupation of the Palestinian

Territories suggests that if the Court “had declined to assume jurisdiction” in petitions regarding

the occupation that may have limited the legitimacy of the military actions. (2002, p. 198). On a

related issue, Reichman notes that without judicial review, it might have been easier to mobilize

political power to end the occupation sooner (Reichman, 2001). The decision to assume

47 HCJ 390/79 Dawikat v. government of Israel 34(1) PADI 1. 48 This is also termed "Early Warning" procedure, a less popular term, yet more frequently used in the opinion of the Court (twenty six times as opposed to only five of "Neighbor Procedure"). 49 HCJ 3799/02 Adalah – The Legal Center for Arab Minority Rights in Israel v. GOC Central Command, IDF. For several other judgments which reflect a similar approach by the Court see infra note 49.

91

jurisdiction in petitions regarding the occupation had ramifications and risks regarding the

Court’s own legitimacy. Justice Landau, then the Deputy President of the Supreme Court, noted

this risk in his opinion in the 1979 Elon Moreh case50: “As I am well aware in advance that the

public at large will not pay attention to the legal reasoning, but to the end result alone. And that

the Court’s proper status, as an institution above partisan debates, risks being harmed. What can

we do, as this is our function and role as judges” (at p. 4).

Evidence gathered during the last decade points to the rapid erosion of the status of the Supreme

Court in Israeli society: According to polls conducted by the Israeli Democracy Institute, the

level of trust in the Supreme Court sank to an all-time low during 2008: Just 49 percent of the

interviewees, who were representative of the Israeli public, mentioned the Supreme Court as a

trustworthy institution (Arian, Philippov & Knafelman, 2009). This may have been a limited

lapse in legitimacy as according to the Israeli Democracy Institute 2012 poll, 72.5 percent of

interviewees, who were representative of the Israeli public, mentioned the Supreme Court as a

trustworthy institution (Hermann, Atmor, Heller & Lebel, 2012). The 2008 findings reflecting

limited support for the court are a drastic change from the results of a poll conducted during

1991: According to the 1991 poll, 78 percent of the Israeli public expressed strong or partial

support for the Supreme Court (Barzilai, Yuchtman-Yaar & Segal, 1994).

The decline in support for the Court may also be explained by its involvement in the conflict:

The findings of the abovementioned 1991 poll indicated that the more the Court was involved in

imposing supervision over the security authorities, the more the support for the Court

diminished. This was found to be especially valid with regard to the imposition of restrictions on

the military authorities in the occupied territories (Barzilai, Yuchtman-Yaar & Segal, 1994).

These findings may also explain the desire recently expressed by former chief justice, Aharon

Barak, to completely relinquish judicial review (currently undertaken by the Supreme Court) of

Israeli actions in the occupied territories in exchange for a full Israeli constitution (Bendor &

Segal, 2009). Another explanation can be inferred from Kathleen Cavanaugh, a lecturer of

International Law in the Faculty of Law, Irish Centre for Human Rights, National University of

50 HCJ 390/79 Dawikat v. The State of Israel, PADI 34(1), 5. Aharon Barak also noted this risk by citing an opinion by citing Deputy President of the Supreme Court Justice Landau in HCJ 5100/94, The Public Committee Against Torture in Israel v. The State of Israel, PADI 53(4), 817.

92

Ireland, who has suggested that the gap between the Court decisions and international legal

norms is becoming part of the historical record, providing a forensic account of violations that

can, in the transitional phase, address questions of accountability (2008), strengthening the

international struggle against the Occupation (Adalah, 2008).

The Court’s own official Internet site carries the heading “Judgments of the Israeli Supreme

Court: Fighting Terrorism within the Law” which automatically appears on the site’s English

query page.51 In other words, any search for a Court decision in English is met with the Court’s

self-defined declaration concerning the conflict with the Palestinians. This heading is also the

title of a series of publications by Israel’s Ministry of Foreign Affairs and the Court, which

contain translations of several decisions given by the Supreme Court “on various matters relating

to the fight of the State of Israel against terrorism”.52 This unusual statement can be perceived as

an attempt by the Court to manifest the ethos of the conflict of the Israeli Jewish society,

attempting to take an active part in ‘Hasbara’ efforts, or public relations efforts to disseminate

abroad positive information about Israel, aiming to convince the English speaking world that

Israel is not only fighting terrorists, but does so within the boundaries of rule of law.

The Court and the Executive Branch

The ability of a court to frame major historical events has been a focal point of jurisprudential

study. According to Sarat and Kearns, law is "an active participant in the process through which

history is written and memory constructed" (Sarat & Kearns, 1999, p. 3). Yet in the context of

the conflict, the Israeli Supreme Court has encountered external factors within the Israeli

government and society which have limited its ability to utilize either its coercive or its

persuasive powers. The following paragraphs will briefly present these obstacles which play an

important role in the context of the Court's decisions regarding the conflict with the Palestinians.

The Court has met with significant challenges regarding the executive branch’s comprehensive

powers and dominance. Saban (2011) demonstrates the limited capacities of the Supreme Court

51 http://elyon1.court.gov.il/verdictssearch/englishverdictssearch.aspx 52 http://www.mfa.gov.il/mfa/foreignpolicy/terrorism/palestinian/pages/judgments_israel_supreme_court-fighting_terrorism_within_law-vol_3.aspx

93

by discussing a Court decision to annul an enclosure order of a Palestinian village, issued under

the authority of Regulation 125 of the Defence Regulations of 1945, given lack of an official

publication of the order. According to Saban, in response to the Court decision, the government

had retroactively validated the order that the Court had annulled. An even more striking example

discussed by Saban (2011) is the more familiar case of the Iqrit expellees, which came before the

Court in 1951, a few years after the establishment of the state of Israel.53 The Court publicly

admitted its failure to attain compliance from the military authorities, which ignored the Court

and legalized the expulsion by retroactively issuing evacuation orders.

Legal historian Oren Bracha's study of the historical setting of the Court decisions regarding the

issue of Palestinian infiltrators during the first six years after the foundation of the state (1948-

1954), echoes Shamir's argument suggesting that differences between the Court and the

executive branch are manifestations of disputes over territories of jurisdiction rather than a

reflection of fundamental ideological differences.54 Additionally, Bracha's conclusions seem to

support Mautner's description of the early Court's perception of its role during Israel's first

decade. According to Bracha's findings, during that early period, the Supreme Court perceived

itself as an educator, instilling into Israeli society values which originated in the legal sub-

culture.55 However, Bracha notes that the substantive values of the Supreme Court with regard to

the Palestinian infiltrators were conformist, collectivist and manifested the interests of the state

and Zionist society as the Court perceived them. Bracha offers an explanation of the disputes

over areas of jurisdiction, noting that, in that early period, the Court's rulings with regard to

Palestinians were, on more than one occasion, callously disregarded by the Israeli military

(Bracha, 1998; see also Tal, 1994).

53 HCJ 64/51 Daoud v. Minister of Defence, PADI 5, 1117. 54 Bracha's research uncovered a letter describing Justice Yitzhak Olshan's involvement with the Israeli security forces, offering advice on policies regarding Palestinian infiltrators. 55 Bracha's conclusion corresponds with the research regarding the role of democracy during the early days of the Israeli society: Researchers have shown that the founding fathers of the state did not promote the creation of a strong, functioning liberal democracy, as this was not perceived as significant (Barzilai, 1996; Horowitz & Lissak, 1990; Kimmerling, 1989; Shafir & Peleg, 2002; Yaniv, 1993). Hence, few formal educational efforts were made to instill democratic values in the younger generation (Elboim-Dror, 1999; Ichilov, 1993; Pedahzur, 2002). Democratic values received negligible attention in comparison to the nationalistic emphases on Zionism, 'halutziut' (values and practices of the Jewish pioneers), and Jewish-oriented education (Halperin & Bar Tal, 2006).

94

The duty to comply with judgments issued by the judiciary is based on the principle of the rule of

law, yet to the extent that Court judgments concern the rights of Arab citizens of the state, full

implementation is scarcely achieved (Zaher, 2009). Similarly, former Israeli Deputy Attorney

General, Judith Karp, has noted that Israel does not comply with many of the Court's judgments

regarding the occupied territories (Karp, 2010; see also: Mautner, 2011; Stahl, 2011). Adding to

the violations of the duty to comply are violations of the duty to provide the Court with accurate

information: Former Chief Justice Barak noted that the Court had been misled, on several

occasions, by the defense authorities regarding petitions which had dealt with the territories

(Glickman, 2009). Given the executive branch failure to comply, time and time again, with Court

decisions related to the conflict it is perhaps not surprising that the Court strives to avoid

clashing with the military authorities in control of the Occupied Territories (Benvenisti, 2003).

Another phenomenon which points at a different direction was noted by a research of more than

600 Court decisions related to “terror” given in 200 petitions between the years 2000 and 2008.

According to Hofnung and Margel who conducted the research, despite the fact that in most

cases, the Court does not overtly intervene in decisions of the security authorities, the Court’s

decisions do contain an implicit component preventing additional harmful executive measures

(2010). Analysis points out that by employing the judicial strategy of carefully avoiding written

decisions in favor of the petitioners, the Court can maintain its invisible power to force security

agencies to consider less drastic solutions for fear of being overruled by the government

(Hofnung & Margel, 2010). A similar conclusion is offered by Dotan’s extensive study, focusing

on out-of-court settlements in petitions by Palestinians, which demonstrated that the court

frequently forced the security authorities to compromise with the petitioner. Moreover, Dotan

asserts that as a result of the court’s influence, the authorities frequently back down or

compromise before the matter reaches the court (1999). These conclusions echoes Israeli human

rights lawyer, Tamar Peleg-Shrik, claims according to which the Court has harnessed the most

brutal, unlawful actions of the Israeli military, thereby also minimizing somewhat Palestinian

suffering (quoted in Benvenisti, 1993; see also Davidov & Reichman, 2010; Reichman, 2011).

The Court may be regarded as attempting not to test the willingness of the State to comply with

its decisions too often, thereby ruling in favor of the State in the overwhelming majority of cases

95

regarding the conflict (Saban 2011; Shamir, 1988, 1990). For example, the Court had to address

Israel’s policy of deportation of residents of the occupied Territories at length on several

occasions (Kretzmer, 2002). The Court’s decisions regarding deportations were criticized by

International law scholars (see, for example, Dinstein, 1988), culminating in a highly criticized

decision56 regarding a mass deportation of 415 Palestinians in December 1992 (Benvenisti, 1993;

Cohn, 1993; Gaff, 1993; Dayanim, 1994; Lerner ,1994; Kretzmer, 2002). While the Israeli

Cabinet decided to deport a "large number" of Palestinians, the Supreme Court had to negotiate

the decisions and actions of Israel’s security authorities, while both the Court and the security

authorities were operating under circumstances which were far from ideal (Bash, Ginbar &

Felner, 1993). Aharon Barak, one of the seven judges who presided over the case, later lamented

the Court’s decision, denying the right of the deportees to individual and prior hearing (Levitzki,

2001).

One example of the IDF defiance of the Court regards Israeli policy of "targeted killings". Soon

after the eruption of violence in September 2000, the Israeli government declared that the level

and scope of violence justified regarding the situation as "armed conflict short of war", leading to

the adoption of a policy of targeted killings. The Court had initially declined to subject this

policy to judicial review, suggesting that it was non-justiciable. The policies of the IDF were

criticized by international law scholars (Ben Naftali & Michaeli, 2003; Kretzmer, 2005b) as well

as by the United Nations Secretary General, although many international law scholars argue that

in the context of hostilities in an ongoing armed conflict the use of deadly force against fighters

belonging to armed groups who are parties to the conflict could be legal (Kretzmer, 2009). In a

later decision, the Court ruled that targeted killing could be used by the IDF as an act of self-

defense, outlining specific conditions for its use, given the existence of an ongoing armed

conflict with Palestinian armed groups. Members of those armed groups who take a direct part in

hostilities may be targeted while taking direct part in hostilities.57 International law scholar,

56 HCJ 5973/92. Association for Civil Rights in Israel v. Minister of Defence, PADI 47(1), 267. 57 HCJ 769/02 The Public Committee against Torture in Israel v. The Government of Israel (not yet published). An interesting perspective on this case is offered by Colonel (res.) Daniel Reisner, who headed the International Law Department in the Israeli Defense Force. According to Reisner “What we are seeing now is a revision of international law (…) If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries. (…) We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it

96

Cassese, noted that the judgment is significant because (i) it concluded that the issue of targeted

killings did not amount to a non-justiciable question, (ii) it suggested a novel and imaginative

way of narrowing down the vague scope of imprecise international rules on methods of combat,

and in addition (iii) it set out a range of measures that belligerents must take both before and

after armed attacks against civilians participating in hostilities, so as to avoid damage to innocent

civilians as far as possible (2007). Other scholars have noted that while the Court decision on

targeted killing is a positive contribution to the development of the principle of proportionality

under international humanitarian law, its substantive contents remain unclear (Cohen & Shany,

2007). Unfortunately, there are some indications that the judgment was not complied with:

According to a secret IDF operational briefing, brought to light by an investigative media report,

the IDF Chief of Staff, Gabi Ashkenazi, as well as the former head of Israeli Central Command,

Yair Naveh, have authorized the assassinations of "wanted" Palestinians as well as uninvolved

civilians who are present during the time of the assassination, in apparent defiance of the

Supreme Court guidelines for such operations (Blau, 2008).

Summary

The Israeli Supreme Court has played a significant role in some of the most important political,

social and legal issues facing the country, since its foundation in 1948. Its continuous

involvement in such major issues has led to political criticism as well as public scrutiny of the

Court. This was exacerbated by the significant role the Court has played in the context of the

Israeli-Palestinian conflict. It is, therefore, not surprising that the Court’s adjudication of key

aspects of the conflict has not only ensured that the Court’s work was closely followed by the

Israeli public, but also that the Court’s decisions were often the cause of intense public debate.

The extensive involvement of the Court with issues related to the Palestinian-Israeli conflict has

also echoed the conflict’s history: Following the occupation of the West Bank and the Gaza

Strip, the Court decided to hear petitions from Palestinian residents of the Occupied Territories.

This led to the Court's prolonged and ongoing involvement in some of the most fundamental

hard to insert easily into the legal moulds. Eight years later it is in the center of the bounds of legitimacy" (Feldman & Blau, 2009).

97

aspects of the occupation, including aspects of thestatus of the settlement project and the actions

of the Israeli military in the Occupied Territories.

This chapter discussed some of the most significant research regarding the Court, which has

dealt extensively with the social, political and, naturally, the legal aspects of the Court’s actions

and roles, particularly with regard to the conflict with the Palestinians, The manner in which the

Court utilizes the ethos of the conflict and collective memory reflecting the intractable nature of

the Israeli-Palestinian conflict, has yet to be examined systematically. This is the goal of the

present research, which both documents and examines the Court’s use of socio-psychological

expressions in all decisions related to the conflict published between 1948 and 2006.

I now turn to discuss the present study. The next chapter examines the present study’s goal,

chapter five discusses methodological aspects and chapter six explores the present study’s

results. Finally, chapter seven offers discussion and conclusions.

98

Chapter IV – The Present Research: Goals

Introduction

The present research explores ethos' expressions in the Israeli Supreme Court’s (“the Court”)

published decisions regarding the conflict with the Palestinians. Chapter II discussed the use of

the ethos of the conflict in social institutions operating in societies involved in intractable

conflict. As noted in chapter II, previous research suggests that under conditions of intractable

conflict social institutions manifest rigid societal beliefs which create an ethos of conflict for

various purposes, including the need to generate legitimacy among members of their respective

society.

As noted in chapter III, which has provided a detailed discussion of the available research

regarding the Court’s various social and legal roles, the Court has played various roles regarding

prevalent societal beliefs, constructing, sustaining and reflecting beliefs and perceptions held by

the majority of the Israeli society. While the role of the court with regard to general beliefs was

studied and some research has demonstrated the Court’s role in promoting security as a societal

belief, no study has yet to offer a systematic examination of the role of the court with regard to

the use of ethos of the conflict in justifying its decisions.

The present study explored ethos beliefs in court’s decisions regarding the Israeli-Palestinian

conflict given the prevalence of similar expressions by political, social, educational, and cultural

institutions and communication channels, as discussed in chapter II.

This following section presents considerations regarding the research variables. The next section

presents considerations and criterions used to creating the research database. The last section of

this chapter briefly examines the ramifications of the exploratory nature of the research.

99

The Research Data

In order to explore the role of ethos expressions as found in the Court’s decisions regarding the

conflict, the present research explores a large number of dependent and independent variables,

classified according to the following four categories. All research variables and categories are

defined in the following chapter, dealing with methodological aspects of the present research.

Ethos Societal Beliefs

Chapter II has presented a detailed discussion of the available research regarding the influence of

the conflict on the psychology of Israeli society, a society involved in an intractable conflict. The

ethos serve a multitude of psychological roles in the Israeli society, primarily allowing society

members to cope with what they perceive as a prolonged and violent conflict.

The present research explores the extent of the use of the ethos' themes in the court’s published

decisions from 1948 until 2006. Given existing data regarding the use of the ethos during that

period regarding other social institutions, the results of the present research sheds light on the

role of the court in promoting, sustaining and reflecting the ethos. In addition the present

research examines other variables, including alternative societal beliefs.

Alternative Societal Beliefs

The present research examines the use of alternative societal beliefs, or beliefs which contradicts

parts of the ethos, by the court, given the use of alternative societal beliefs in societies which are

a side to an intractable conflict, as discussed in Chapter II. By exploring the extent of alternative

societal beliefs by the court the present research allows for a comparative analysis of the research

findings regarding the use of the ethos societal beliefs.

Given the discussion of the Court’s social roles offered in chapter III and the discussion of the

social roles of social and national institutions with regard to the ethos societal beliefs available in

100

Chapter II, the use of expression of alternative beliefs by the Supreme Court in decisions related

to the conflict is likely to be minimal.

Collective Memory and the Holocaust

Reflecting findings of previous research regarding the role of collective memory in societies

which are sides to an intractable conflict, and as discussed in detail in chapter II, collective

memory of societies, which are a side to an intractable conflict, consist of limited representations

of the past remembered by society members as the history of the conflict, rather than an attempt

to represent historical events in an objective manner. As discussed in chapter II, ethos

expressions and collective memory are linked – representing two aspects of social worldview

created due to intractable conflicts. The role of the court in creation and sustaining the collective

memory of Israel as a side to the conflict is included in the present research to examine

interactions between discussions of the ethos and expressions of collective memory.

While the Holocaust is part of Israeli Jewish society collective memory, given its all-

encompassing influence, the present research has included expressions of the Holocaust as a

separate variable: The present research has separated expressions of collective memory and

expressions of the Holocaust. As the following paragraphs will demonstrate, the significance of

the Holocaust in the context of the present research stems from its unique role regarding Israel’s

social identity: The Holocaust has gradually been transformed from “what Israeliness is not” into

a core element of Israeli identity (Klar, Schori-Eyal, & Klar, 2013; Simon, 2004). The Holocaust

can be considered a national trauma (Elon, 1971; Lazar, Litvak-Hirsch, & Chaitin, 2008),

influencing all aspects of life and Israeli social identity: Political scientists Liebman and Don-

Yihya (1983) have suggested the Holocaust is the primary political myth of Israeli society, its

memory is omnipresent, cutting across differences in age, education and even country of origin

(pp. 137–138).

The Holocaust is a predominant issue in all areas of Israeli social and cultural life, including

literature (Feldman, 1992), film (Gertz, 2004), visual arts (Katz-Freiman, 2003), and even humor

(Zandberg, 2006). The extent of the influence of the Holocaust on the Israeli society can be

101

partly attained by the findings of a study which found that Israeli students consider the Holocaust

to be the most important event in the Jewish history, more than the foundation of the State of

Israel (Bar-Tal, 2007a). An overwhelming majority (98 percent) of respondents to a 2009 survey

of the Jewish–Israeli adult population have stated that remembering the Holocaust is a guiding

principle in their life (Arian, 2012; see also Oron, 1993). Seventy-six percent of the high school

students in a recent survey indicated that “the Holocaust affects their worldview,” while 94

percent stated that they “are committed to preserving the memory of the Holocaust” (Cohen,

2010).

During Israel’s formative years, the Jewish victims of the Holocaust were negatively viewed as

defenseless and passive (Bilu, 2004). Following the Eichmann trial and the sense of imminent

doom before the 1967 War and during the 1973 War, the impact of the Holocaust on Israeli

society and the sense of affinity with its victims have been growing (Shapira 1998; Feldman,

2008). The Likud coming to power in 1977 led to a cultural change in the perception and the

symbols of identity, from secular to more traditional-religious symbols, in which the Holocaust

played a major role (Porat, 2004; Kimmerling, 2004). The existential threat that Israel faced

during the 1967 and 1973 wars had engendered enormous anxiety and palpable fear. The specter

of possible destruction reanimated the near dormant memories and images of the Holocaust and

created a new awareness of both the magnitude and the contemporary relevance of the

catastrophe (Gross, 2011). In 1980, the Knesset amended the State Education Law to include

‘awareness of the memory of the Holocaust and the heroes’ as one of its goals. Moreover, the

Ministry of Education decided that the high school matriculation examination in history would

include material on the Holocaust (Segev, 2000). In recent years, voyages to the death camps in

Poland have become initiatory landmarks for Israeli teenagers, designed to instill in them with a

sense of common Jewish destiny and identity (Feldman, 2008). The need to defend against a

possible chemical attack on Israel during the 1991 Gulf War led to associations with the

Holocaust which became almost inescapable for Israelis (Klar, Schori-Eyal, & Klar, 2013; Porat,

2008; Zuckerman, 1993).

For the vast majority of contemporary Israelis, the Holocaust is currently an acquired memory

rather than a living memory. However, the presence of the Holocaust and its place in Israeli

102

collective identity has not faded but is rather on the rise (Ofer, 2009). Recent studies have not

found any significant different regarding the importance that students, who are third generation

to Holocaust survivors, attribute to the Holocaust as compared to other students who were not

descendants of Holocaust survivors (Litvak-Hirsch & Chaitin, 2010), implying that the

Holocaust has not been perceived by the current Israeli society as related to the personal history

of its members but rather as a social event.

Israeli Jews regard the Holocaust as ‘cultural trauma’ (Lazar, Litvak-Hirsch, & Chaitin, 2008;

Alexander, 2004; Jaspal & Yampolsky, 2011); Fear stemming from the memory of the Holocaust

creates a distorted sense of time, linking the past with the present forming a unified, stifling,

perception of the threat of annihilation (Bar-Tal 2007a). In this psycho-social climate,

"Auschwitz is not a past event but a threatening present and a constant option” for the Israeli

Jewish society (Zertal, 2005, p. 4). Each threat made against the State of Israel, however trivial,

quickly becomes a threat to Jewish survival (Weinberg & Nuttman-Shwartz, 2006). This view of

the Israeli society offers a glimpse into the manner in which personal psychic injuries transforms

and shape society: while the influence of a threat of annihilation that defines the traumatic

moment can pursue the survivor long after the danger had passed (Herman, 1997), the Israeli

experience suggest it also haunts society as a whole, not only those who were victims of the

original trauma.

While the importance of the Holocaust cannot be overestimated, Jewish history is fraught with

acts of persecution even before the Holocaust (Wistrich, 1999). However, the Holocaust's

meaning is currently undergoing a process of crystallization as the ‘chosen trauma’ of the Israeli

society (Shoshani, Shoshani & Shinar, 2010); The term 'chosen trauma', coined by psychoanalyst

Vamik Volkan to describe a shared mental representation of a traumatic event in the history of a

given society (such as a catastrophic loss or deep humiliation) suggest that the memory of the

trauma prevents the members of the society from undergoing a process of mourning their loss

(Volkan, 2006). Instead, the society passes the memory of the trauma to the next generations in a

raw, not metabolized, form. Traumatic memories are not mediated by subsequent events: they

remain intact, in an endless feedback loop, as if time has stood still (Boulanger, 2002). As time

passes, these mental representations become dominant in the social narrative, uniting the society

103

and linking individual members (Shoshani, Shoshani & Shinar, 2010). Observation made by

Amos Elon four decades ago still holds well today "The Holocaust remains a basic trauma of

Israeli society. It is impossible to exaggerate its effect on the process of nation-building... There

is a latent hysteria in Israeli life that stems directly from this source…The trauma of the

Holocaust leaves an indelible mark on the national psychology, the tenor and content of public

life, the conduct of foreign affairs, on politics, education, literature and the arts (Elon, 1971, p.

198-199).

The presence of the Holocaust in the Israeli society is pervasive, influencing the individuals'

most intimate thoughts; a recent study regarding the dreams of Israelis has found prevailing fear

of an imminent reoccurrence of the Holocaust. This is manifested in dreams in which fears of

deportation are experienced by Jewish Israelis (Biran, 2007). Due, in part, to the presence of the

Holocaust, fear has become a collective emotional orientation in the Israeli Jewish society,

linked with a social ethos of conflict. In such conditions the ability to acknowledge the

possibility of a future better than the past - the ability to feel hope - is unconsciously overridden

by the presence of fear (Bar-Tal, 2001).

The memory of the Holocaust is likely to be the most important historical event influencing the

behaviors and perceptions of Jewish Israelis, both as individuals and as a collective, with regard

to the conflict with the Palestinians (Bar-Tal 2007a). Thinking about the Holocaust may promote

beliefs regarding perceived threats as threatening the survival of Jews in Israel, which in turn

encourages the desire for greater intragroup solidarity (Lazar, Litvak-Hirsch, & Chaitin , 2008).

In order for their group identity to persist, it is essential to preserve and enhance a sense of

distinctiveness from outgroups, which constitutes a fundamental means of collective identity

construction (Jaspal & Cinnirella, 2012). It has been observed that Israeli politicians frequently

invoke the Holocaust in order to justify and to rationalize Israel’s military activities in the Israeli-

Arab conflict (Segev, 2000). On a similar note, Israeli Prime Minister Benyamin Netanyahu has

explicitly highlighted similarities between the Islamic Republic of Iran and Nazi Germany,

which perhaps encourages individuals to anchor representations of Iran to those of Nazi

Germany (Jaspal & Yampolsky, 2011).

104

The growing appreciation of the Holocaust as a national catastrophe, and of the survivors and

their offspring as traumatized, prepared the soil for accepting the notion of national trauma also

in the context of the Israeli-Palestinian conflict (Friedman-Peleg & Bilu, 2011).Bar-On (2008)

observes that Arabs were regarded by many Jews as a ‘continuation’ of the German Nazis who

had perpetrated the Holocaust. Moreover, the anchoring of Arabs to social representations of

German Nazis perhaps meant that both Arabs and Nazis were perceived as posing an ‘existential

threat to the personal and collective Jewish self’ (Bar-On, 2008, p. 8). Like the Nazis, Arabs

were regarded as seeking the annihilation of the Jews. In fact, Bar-On (2008) observed that when

his participants were asked to describe their attitudes towards Palestinians, they tended to focus

on how they thought they themselves were perceived by Palestinians.

Social representations of enhanced ingroup security among Jews in Israel could be attributed to

their majority status within the country. Elon (1981) identified the widespread belief that one

major contributing factor to the Holocaust was the lack of a Jewish sovereign state. This social

representation is likely to be of contemporary social relevance, given that there exists a

widespread belief that Jews must maintain their demographic numerical superiority vis-a`-vis

that of ethno-religious out-groups, such as the Palestinians (Bar-On, 2008; Remennick, 2008).

Legal Variables

The present research consisted not only of socio-psychological variables but also of legal-

oriented ones such as the identity of the judges involved, the type of procedure and existence of

an extended panel. Several legal-oriented aspects of the researched decisions were examined and

compared with expressions of socio-psychological variables. Given the unique subject matter of

the present research – decisions of the Israeli Supreme Court – legal variables were examined to

allow for a study of possible influences of the legal aspects of the decision on the socio-

psychological aspects.

For example, the present research has provided data on the question of the connection between

decisions’ outcome and the use of the ethos by the court. In addition, the presence of a dissenting

opinion may increase the use of ethos expressions in an attempt to strengthen either the

105

dissenting justices' opinions in face of the majority opinion or that of the majority given the

dissenting opinion. In other words, the increased need for persuasion may lead to increased use

of the ethos. Similarly, in the rare occasions in which a decision is given by an extended panel of

judges, the court is more likely to use ethos expressions given the need to justify what is

arguably a difficult decision (hence the existence of an extended panel).

Legal variables examined in the context of the present research include the national identity of

the winning side to the decisions, type of procedure, existence of an extended panel, the names

of the judges involved and whether a dissenting opinion was part of the decision.

Judges names (including registrars) – This variable includes the names of all judges who have

participated in writing the judicial decision. While the research does include information about

the identities of each of the judges for all decisions, all ethos expressions as well as other

variables were not associated with any particular justice. The research allows for an indirect link

between each individual judge’s identity and ethos expressions to be established for every

decision. A direct link can be established by a future, follow-up research, linking existing

research data regarding various textual expressions with particular judges' identities for each

textual expression containing a theme explored by the current research.

Dissenting Opinion Exists – One or more of the involved judges disputed the decision of the

majority of the court. Each decision including a dissenting opinion is marked clearly in this

respect. According to Shahar, Harris, and Gross (1997), about 95% of the court’s published

decisions made between 1948 and the mid-1990s were unanimous. A study of a representative

sample of 500 decisions made between the years 1980 and 2000 showed that the rate of

unanimous decisions during this period was about 90% (Weinshall-Margel, 2011). According to

a study of 638 Israeli Supreme Court decisions related to national security from 2000 to 2008,

decisions were unanimous in an overwhelming majority of cases: According to the researchers,

the bench gave a stamp of approval to the decision of the judge appointed to write the decision

(Hofnung & Weinshall Margel, 2011)58. The present research examined whether the existence of

a dissenting opinion correlates with a more intensive use of the ethos. Dissenting opinion, or a

58 No exact number is cited by the researchers as this was not the focus of their study (p. 673).

106

difference of opinion among judges, implies greater need for using arguments aimed at

convincing other judges on the panel, leading to a potential increase in the use of the ethos by

either majority or minority judges.

Considerations regarding the Selection of Database Decisions

The following paragraphs explore considerations regarding the focus on published decisions.

Subsequent paragraphs define the term ‘related to the conflict’ and examine some of the

considerations regarding this definition. The concluding part of this section discusses

consideration regarding the term ‘Palestinian’ in the context of the present database.

Researching Published Decisions

The majority of the decisions by the court have not appeared in the official court publication.

More so, most of the decisions related to the conflict have not been published (see, Shamir,

1988)59. While unpublished decisions have traditionally been more difficult to obtain, and

therefore, have had less of an impact on the Israeli society, the emergence of computerized

software containing Supreme Court decisions, including all current (to the time of publication)

decisions of the Supreme Court, published and unpublished, have caused the distinction between

published and unpublished decisions to gradually lose importance. As a consequence, the official

publication temporarily ceased to be published during 2007-8 due to lack of financial viability

(Baum, 2008).

Ronen Shamir's research on the decisions of the Supreme Court in the context of the occupied

territories has revealed that during the period of almost two decades, from 1967 until 1986, only

65 of the 557 petitions submitted to the High Court of Justice by residents of the occupied

territories were published: less than 12 percent. Of the petitions which have not resulted in a

published decision, 38 (7 percent) were terminated in agreement with both sides to the petition.

A further 308 (55 percent) petitions were withdrawn by the petitioner, while only 3 (0.5 percent)

were granted by the court (Shamir, 1988). Shamir has further noted that instead of granting the

59 Shamir’s research discuss only a limited period, as noted below.

107

petitions of Palestinian residents of the occupied territories, the court used its powers to broker

deals between the petitioners and the representatives of the state. When the state representatives

were willing to demonstrate some flexibility, for example, allowing rooms of a blocked house to

be opened or postponing the demolition of the petitioner's house, the judges called upon the

petitioners to withdraw their petition. This method, described by Shamir as the "quiet role" of the

court, is one of the most significant aspects of the court’s involvement in the conflict, yet it has

largely remained out of sight, hidden from the majority of the legal community (Shamir, 1988,

1990). Using the term "court's shadow," Kretzmer offers a comprehensive discussion of the

Supreme Court's hidden influence regarding Israel's actions in the occupied territories:

“[T]he Court has often forced the authorities to reconsider planned action or to compromise with

the petitioner. Sometimes pressure on the authorities is the direct result of remarks made by

judges during a hearing (…) In other cases, issuance of an interim injunction by the Court,

pending a final decision in the case, has allowed time for public opinion to force the authorities

to reconsider their opinion. The authorities frequently back down or compromise before the

matter reaches court" (Kretzmer, 2002, pp. 189-90).

Kretzmer notes that the restraining influence of the court is therefore "far greater than can be

gleaned from its actual decisions" (p. 190). Furthermore, as noted by Kretzmer, taking into

account the unpublished decisions of the court, Dotan's research has discovered that the

percentage of successful petitions by Palestinians is actually higher than the percentage of the

overall rate of success regarding all petitions submitted to the court (Dotan, 1999). Similarly, a

recent research by Hofnung and Weinshall Margel (2011) of 462 rulings made by the Israeli

Supreme Court in security cases from 2000 to June 2008 has suggested that in many of the cases

in which the court has decided to reject the petition, some material gains were awarded to the

Palestinian petitioners. While this affirms the restraining influence of the unpublished decisions

by the court on the activities of the military authorities (Kretzmer, 2002), Israeli society, as well

as the majority of the Israeli professional legal community, have remained largely ignorant of

this important aspect of the Court’s work. However, the “court’s shadow” decisions were not

included as part of the research database given that for the purposes of the present research,

unpublished, ‘hidden’ decisions have played a significantly less important role in creating and

108

sustaining the ethos of the conflict: while the ethos is created by state and cultural institutions, as

well as by statements of leaders, as well as decisions by the court, secret expressions of the ethos

have little chance of creating an impact on society’s views.

With the availability of computerized legal databases which have included all the Supreme

Court's judgments during the early 1990s, the problem of accessibility to unpublished decisions

has lessened dramatically. The court's decisions have been published by commercial databases

and later on, by the Supreme Court's own official website as well. However, given the nature of

the proposed research, which focuses on the interaction between the Supreme Court and Israeli

society, unpublished decisions, which were not available to the public following their writing but

only years afterwards, are of lesser importance for the purposes of the present research.

Decisions which were not publicized could not influence the public to the same extent that

published decisions could, and therefore would not be included in the research database.

Given Shamir’s finding, according to which only about 12 percent of decisions regarding the

occupation were published, and given the findings of the present research the total number of

unpublished decisions regarding all aspects of the conflict (not limited to the occupation,

although this is a significant part of the decisions), from early 1990s until 2006, is likely to

exceed 3,000.60 Given pragmatic considerations and given that all published decisions regarding

the conflict (consisting of the present research database) amount to more than 750 decisions, the

research does not include unpublished decisions.

Decisions Related to the Conflict

Most of the decisions selected for inclusion in the research database accorded complied with the

following criteria: first, the decision had involved a Palestinian individual or individuals or a

wholly (or partly) owned Palestinian institution or institutions (for a discussion of the definition

“Palestinian” used in the context of the present research, see below) as one party to the decision

60 The number of published decisions from 1992 until 2006 which are part of the research database is 328. See Chapter VI for full details of the present research results.

109

(or, in rare cases, both sides), and second, an expression of social or national content related to

the conflict as part of the decision.

The following are examples utilizing the criterion ‘related to the conflict’: a decision regarding a

car accident involving both Palestinians and Israelis was not included unless some the identities

of the sides played a role in the accident or its aftermath. Another example of the ‘related to the

conflict’ criterion regarded decisions dealing with the legal subject of forum non conveniens:

whether the Israeli court system was the right forum for legal parties. For example, in Abu

Gahaleh,61 the court dealt with a civil claim by a Palestinian, who is not a resident or citizen of

Israel, against the East Jerusalem Electric Company, a company registered in Israel yet viewed

by the court as a non-Israeli company. Neither side to the legal dispute were Jewish nor Israeli,

yet the question before the court was directly related to the conflict – the authority of an Israeli

court authority in a Palestinian dispute – and therefore the decision is included in the research

database.

Decisions which were not included as part of the research may have referred to the Israeli-

Palestinian conflict in passing. For example, in a decision dealing with the ramifications of the

Israeli invasion of Lebanon, the libel suit brought by former Israeli defense minister, Ariel

Sharon, against journalist Uzi Benziman, briefly discussed the conflict with the Palestinians. As

the majority of ethos expressions found in this decision did not deal with the Israeli-Palestinian

conflict, such decisions were not included in the database.

An additional criterion was used to allow the inclusion of decisions if a Palestinian was not a

side to a case, yet the issues discussed by the court’s decision directly related to Palestinian or

Israeli national or social issues and represent significant aspects of the Israeli-Palestinian

conflict, such as the occupation of Palestinian land, the status of the settlements, etc. The

additional criterion allowed for the inclusion of decisions dealing with core issues of the Israeli-

Palestinian conflict in which, for political or other reasons, Palestinian were not included as a

party to the legal process. The additional criterion, which has led to the inclusion of a small

number of decisions, compensated for the inherent limitations of the main criteria used to include

61 C.A. 2705/91 Abu Gahaleh v. The Electricity Co. East Jerusalem, PADI 48(1) 554.

110

decisions in the research database. Examples of decisions included in the research database based

on the additional criterion include decisions regarding granting authorization for religious visits

of Temple Mount to Jewish Israelis62 and decisions regarding Israeli settlers’ interactions with

Palestinians or with occupying Israeli forces in the context of the conflict.63 Decisions regarding

the first Lebanon War were not included given that they represent different geographical and

political circumstances than decisions regarding the occupied Palestinian territories.

Defining ‘Palestinians’ as a Research Variable

Creating the database for the current research demanded a clear definition of the term

‘Palestinians’. Researchers have extensively debated the definition of Palestinians as a nation

and society, discussing, the emergence and formation of the Palestinians as a national entity.

Rashid Khalidi claims Palestinian identity did not emerge mainly as a response to Zionism, but

earlier, before the conflict has begun, during the late 19th century (Khalidi, 1997; see also

Kimmerling and Migdal, 2003; Likhovski, 2006). Others point to a later period James L. Gelvin

(2005) notes the key role played by Zionist immigration in forming the Palestinian identity,

while Seddon points to the creation of the Palestine Liberation Organization as a significant

process in that context (2004). Palestinians are perceived by some scholars to be the modern

descendants of the people who inhabited the region now controlled by Israel, including the

Occupied Territories, as well as the Gaza Strip (Dowty, 2008; Gil, 1983). For the purposes of

this research an inclusive definition was used, including Palestinians living in the Palestinian

Occupied Territories, Israeli Palestinians as well as Israeli Bedouins, following observations

made in this regard by Palestinian legal scholar, Hassan Jabareen, who points to Israeli Jewish

political interests leading to the different categories for Bedouins, Druze as well as to the

distinction between Arab citizens of Israel as opposed to Palestinians living in the Palestinian

Occupied Territories or in other countries (Jabarin, 2001). The operative definition of the term

‘Palestinian’ is offered by the following chapter V, discussing methodological aspects of the

present research.

62 See, for example, H.C.J. 222/68 Nationalistic Society v. The Minister of Police, PADI 24(2) Sup. Ct. Dec. 14; 537/81, Stenger v. The Government of Israel, 45(4) 673. 63 HCJ 507/72, Arnon v. State Attorney, PADI 27(1), 233; HCJ 428/86 Barzilai V. The Israeli. Government, 40(3) 505.

111

Exploratory nature of the research

All published decisions related to the conflict during the years 1948 to 2006 are included as part

of this research, rather than a sample of these decisions, allowing for an inclusive perspective on

the relations between the Israeli Jewish society shared psychological repertoire and the published

decisions of the Court related to the conflict. The study is in its nature exploratory because not

only it is in many respects a pioneering line of research that could serve as a foundation for

formulating hypotheses, but also the literature on the nature of the Supreme Court social roles

and functions is diverse and somewhat conflicting: On the one hand it assumes autonomy and

objectivity of the court’s decision, but on the other hand it suggests that the court is embedded in

the culture of the society it serves. Thus because of these reasons, no research assumptions,

research question or research hypotheses were made regarding possible relations and connections

between the Court decisions and socio-psychological repertoire related to the conflict. However

given available work it is noted that the Israeli Jewish society ethos of the conflict undergoes

changes are influenced, to a significant extent, by major events (Oren, 2005, 2009; see also: Bar-

Tal & Oren 2000), potential changes of the ethos in Court decisions are addressed.

112

Chapter V – The Present Research: Methodology

Introduction

The following chapter discusses methodological aspects of the present research and has two parts

that reflect the stages of study: First, selection of the court decisions for inclusion in the research

database and second, content analyzing the selected decisions by codifying pre-existing codes

such as ethos societal beliefs.

The present research includes all Court decisions related to the Israel-Palestinian conflict which

were published between 1948 and 2006. Consequently, all analysis is a parameter of the whole

population rather than a sample of that population. Therefore all statistical data of the present

research is original data rather than merely estimation.

First Stage: Selecting Decisions for inclusion in the Research Database

The present research required the creation of a unique database consisting of all published

decisions by the court between 1948 and 2006 which are relevant to the conflict. To reach this

goal, all published decisions by the Supreme Court were read in the following order.

First were researched , all the published decisions of the 1970s, in order of appearance in the

court’s official publication, the ‘PADI’, an acronym of ‘Piskey Din Israelim’ (‘Israeli

Decisions’), which reflects the actual order of publication by the court.64 Following a search of

all decisions from the 1970s, all other published decisions from 1948 until 2006 in order of

appearance in the PADI were researched as well. The research began with the 1970s decisions to

allow a better understanding of the nature of the researched material, given that the 1970s are

64 An interesting exception, one of very few encountered during the writing of this research, is Further Hearing 28/84 Zaidan V. A’dir, PADI 45(4) 661, which was published in the PADI of 1991, although the actual decision was made by the court in 1988. The decision includes a rare footnote suggesting that after additional consideration, the editorial board decided to publish the decision which had not been published before. The decision is included as part of the research database in the order of publication, given the importance of the PADI publication in providing access to the court’s decisions.

113

not only the approximate mid–period of the research chronological span but they also cover the

intensive period of the birth of the settlement project.

As noted in chapter IV, court decisions were selected for inclusion in the research database

according to the following two criteria: 1. the decision had to involve both Palestinian

individuals or institutions and a Jewish Israeli individual, corporation (owned by), institute or an

official body of Israel as a State as sides to the decision. 2. The issues discussed related to

national, social, cultural or religious identities of Palestinians and /or Israelis as a national group.

In order to ascertain which decisions correspond with the first criterion, the national identities of

the sides to every published court decision had to be established. Given that court decisions

rarely state the national identity of the sides to the legal procedure and the definition of a

Palestinian is contested by scholars (see discussion in chapter IV), the decision as to whether a

side to the legal process was a Palestinian stemmed from the following principles:

- The person’s name implied Arab descent and s/he resided or was born in Israel, the Occupied

Palestinian Territories or Mandatory Palestine, or the person was referred to by the court as an

Arab, Bedouin, Druze, or a related religion, residing or born in Israel, the Occupied Palestinian

Territories or Mandatory Palestine.

To establish Jewish Israeli nationality:

- The person’s name implied Jewish descent and s/he resided or was born in Israel, the Occupied

Palestinian Territories or Mandatory Palestine.

All decisions which corresponded with the first criterion were further examined to establish

whether the second criterion, mentioning aspects of national, social, cultural or religious

identities of Palestinians and/or Israelis as a national group, was met. Only decisions which met

both criteria were selected to be included as part of the research database.

An additional criterion allowed the inclusion of decisions in which a Palestinian was not a side to

a legal process, yet the issues discussed by the court’s decision were directly related to

114

Palestinian or Israeli national or social issues and represented significant aspects of the Israeli-

Palestinian conflict, such as the occupation of Palestinian land, the status of the settlements, etc.

Inter-judge Reliability of Selection Process

Inter-judge reliability was used in each of the two research stages to minimize the researcher’s

bias (Sackett, 1979). Inter-judge reliability was first used to assess the reliability of the decision

selection process was established and second, was examined the reliability of the research’s

findings regarding expressions of ethos beliefs (discussed below). In both inter-judge processes,

the proportion of overall agreement (po) was used to measure the proportion of overall agreement

between the two judges.

To establish inter-judge reliability for the decision selection process, a LL.B. student reviewed

approximately 10 percent of all published decisions from 1948 until 2006. The volumes to be

read by the second judge were selected as every second book of each third volume of the PADI,

starting from volume 5. Volume 2 proved inconsistent with the volume used by the other judge

in his research, due to different bindings or the use of an alternative publishing firm to PADI

which appeared during the court's early period. The second judge was also given the research

criteria used for selecting the decisions for inclusion in the research database. A total of 82

decisions were selected by the first judge as part of the research database in all volumes and

these were reviewed by the second judge. The initial proportion of overall agreement (po) was

.72. After clarifying discussion between the two reliability judges regarding considerations for

inclusion or exclusion of the court’s decisions regarding the research database, po reached .86.

Second Stage: Researching the Selected Decisions

All database decisions were uploaded to computer-assisted qualitative data analysis software

(‘CAQDAS’), ‘Atlas.si’ forming a single computerized database which allowed for both the

coding process to take place as well as providing various information, statistical and otherwise

regarding each decision-- for example, the overall length or the number of words in each coded

unit of text.

115

The coding process of ethos expressions, alternative societal beliefs and additional variables

(defined below) took place regarding judges’ opinions, which are only a part of the actual

published decision: all published decisions contain additional text such as the names of the sides

to the legal procedure, the type of the procedure, the number of each decision, laws and prior

decisions quoted by the judges etc. Parts of the legal information provided by the additional texts

were registered and appear in the present research database (see below for further details on the

legal variables).

The coding process of ethos expressions, alternative societal beliefs and additional variables was

limited to parts of the decisions in which judges expressed their own opinions, rather than the

parts in which the judges repeated the arguments made by each side to the decision. This practice

allowed us to maintain the present research’s focus on judges’ expressed views and beliefs rather

than on the views of the sides to the decision.

The following paragraphs present the research's pre-defined variables as well as possible routes

of research expressing grounded theory method.

Coding Ethos of Conflict Expressions

One of the ways in which societal beliefs in a given society can be identified and studied is by

analyzing the content of social and cultural products (Bar-Tal, 2000, 2013). This method

examines expressions of the ethos appearing in a given cultural product. The present research

examined ethos expressions in all database court decisions: The expressions were categorized in

a systematic manner in accordance with predetermined analysis units, based on previous studies

which used a similar system of content analysis of text categorization (Arviv-Avramovitz, 2004;

Golan, 2007; Nasie & Bar-Tal, 2012).

Expressions of the ethos of conflict appearing in each decision were coded according to the

following eight societal beliefs: beliefs about the justness of our own goals; beliefs about

security; beliefs about patriotism; beliefs of positive collective self-image; beliefs of unity;

116

beliefs about our own victimization; beliefs about the delegitimization of the Palestinians and

beliefs about peace. Additionally, ethos expressions were evaluated according to Oren’s research

findings on the evolution of the Israeli ethos (Oren, 2005).

While ethos societal beliefs are the subject of a large number of studies, definitions used by the

researcher performing this research as well as during the inter-judge reliability stage, have been

taken from a single, highly relevant study, discussed in Oren and Bar-Tal’s article (2006). The

following definitions of ethos societal beliefs are quoted from Oren and Bar-Tal:

Societal Beliefs: Delegitimization of the Opponent

“Beliefs of this sort include the denial of the humanity of the adversary group (…) Arabs were

attributed such labels as primitive, uncivilized, savage, and backward. With time, as the conflict

deepened and became violent, Arabs were perceived as killers, a bloodthirsty mob, treacherous,

cowardly, cruel, and wicked (…). Arabs as a group were not differentiated and were viewed

homogenously. In addition, Arabs were blamed for the continuation of the conflict, for the

eruption of all of the wars and military clashes, and for intransigently rejecting a peaceful

resolution (…)” (p. 8).

Societal Beliefs: Justness of own goals

“This theme concerns the rationales for the goals that led to the conflict, and particularly the

justification of these goals in terms of their crucial importance (…) The goals centered first of all

on the establishment of a Jewish state in the ancient homeland of Eretz Israel.” (p. 6-7).

Societal Beliefs: Own Victimization

“These beliefs involve self-presentation as a victim of conflict. (…) These beliefs accorded with

the Jewish tradition of viewing Jews as victims of a hostile world (…). This perception is based

on ongoing persecutions, libels, special taxations, restrictions, forced conversions, expulsions,

117

and pogroms that Jews experienced throughout their history, culminating in the systematic

genocide attempt known as the Holocaust that occurred in the 20th century.” (p. 9).

Societal Beliefs: Patriotism

"Societal beliefs of patriotism refer to attachment to the country and society as expressed by

loyalty, love, and sacrifice (…) Those who acted as models of patriotism were glorified, while

those who left the country (called “deserters”) or did not fulfill their duties to the state (…) were

stigmatized (…)” (p. 9).

Societal Beliefs: Peace

“These beliefs center on the society’s ultimate desideratum, namely, peace. (…) Israeli Jews

were stereotyped as peace-loving people forced by circumstances to engage in violent conflict.

They presented themselves as ready to negotiate and achieve peace, whereas the Arabs, rejecting

any peaceful resolution of the conflict and even refusing to have direct contact with Jews, were

seen as the sole obstacle to progress.” (p. 10).

Societal Beliefs: Positive Collective Self Image

“The societal beliefs of positive self-image involve the attribution of positive traits, values,

intentions, and behaviors to one’s own society (…) The positive stereotypes portrayed them as

tenacious, hard-working, courageous, modern, and intelligent on the one hand, and as moral and

humane on the other (…) Positive self-presentation also invoked the Jewish heritage. The Jewish

culture, religion, and tradition were regarded as roots of the West’s civilization and superior

morality.” (p.8-9).

Societal Beliefs: Security

“The societal beliefs about security stress the importance both of national survival and of

personal safety

118

(…) the conditions that were believed to ensure security. First, it was stressed that Israel had the

right and duty to cope with threats by means of its own armed might, without relying on help

from foreign military forces and often disregarding international public opinion or the views of

foreign leaders and international organizations (e.g., the UN). Second, land was regarded as the

country’s most important national strategic asset in maintaining security.” (p. 7-8).

Societal Beliefs: Unity

“These beliefs concern the ignoring of internal disagreements and conflicts so as to unite the

society in the face of external threats (…) Heritage and religion were emphasized, and an attempt

was made to minimize the ethnic differences within a society whose members came from various

parts of the world. Unity was also reinforced by setting lines of agreement in the form of a

“consensus,” and sanctions were applied to those who expressed opinions or exhibited behavior

beyond the acceptable consensus (…). The consensus pertained especially to societal beliefs

about the Arab-Israeli conflict, and about the justness of Israel’s goals and the means of ensuring

security.” (p. 9).

Inter-judge Reliability – Expressions of Ethos Societal Beliefs

Inter-judge reliability was utilized for the second stage of the research with regard to expressions

of the ethos of conflict's societal beliefs. The second judge was a doctoral student who has

investigated ethos expressions in texts as part of his doctorate research. Oren and Bar-Tal’s

article (2006), used by the first judge, also provided ethos belief definitions for the second judge.

The process for selecting decisions to be reviewed by the second judge was the following – all

database decisions were organized according to decision type and decision number. Each tenth

decision was selected – and thus a total of 78 decisions were analyzed by the second judge.

Subsequently, an additional judge, who developed the system coding system, reviewed the

disagreements. With additional comments from the third judge the two judges reviewed their

judgments and then was found po .70, reflecting proportion of agreement between all three

judges.

119

Alternative Societal Beliefs

As noted in chapter III, the present research examines the use of alternative societal beliefs, or

beliefs which contradict parts of the ethos, by the Supreme Court.

For the purposes of this research, alternative societal beliefs are defined as expressions of beliefs,

emotions or thoughts, which contradict one or more of the ethos societal beliefs. For example, in

a case regarding the plight of Palestinians requesting to return to their village, El Jalameh, after

being deported by the Israeli army in 1950, the court made the following statement: “The most

fundamental sense of justice is exasperated by the claim that the army cannot remove the kibbutz

which is on the land now, because in the absence of a judicial decision, the law does not grant it

the power to move the trespassers from the land” (p. 751, my translation O.S.L.).65 This

statement expresses an alternative view regarding the Israeli societal beliefs regarding its own

positive collective self-image.

Another example can be found in a case regarding the uprooting of 5,000 trees in Beit Safafa for

municipal purposes. The court stressed that the land had belonged to the petitioners’ fathers and

forefathers, “for many generations”,66 thereby expressing an alternative view which legitimizes

petitioners' claims in the context of the conflict, rather than delegitimizing them, as expected

given the ethos of the belief involving delegitimization of the opponent.

The following are brief definitions of the alternative societal beliefs used in the context of the

present research :

Alternative Societal Beliefs: Delegitimation of the Opponent – Expressions which contradict

views, beliefs and thoughts regarding de-legitimacy of the opponent or any aspect of the ethos

societal beliefs regarding the delegitimization of the opponent.

65 HCJ 36/52 Al Nadaf v. Minister of Security, PADI 6, 750. 66 HCJ 595/75 Salman v. the Jerusalem District Planning and Building Committee, 30 (3), 337.

120

Alternative Societal Beliefs: Justness of own goals – Expressions which contradict views,

beliefs and thoughts regarding justness of our own goals or any aspect of the ethos societal

beliefs regarding the justness of our own goals.

Alternative Societal Beliefs: Own Victimization – Expressions which contradict views, beliefs

and thoughts regarding our own victimization or any aspect of the ethos societal beliefs

regarding our own victimization.

Alternative Societal Beliefs: Patriotism – Expressions which contradict views, beliefs and

thoughts regarding our patriotism or any aspect of the ethos societal beliefs regarding patriotism.

Alternative Societal Beliefs: Peace – Expressions which contradict views, beliefs and thoughts

regarding our peace aspirations or any aspect of the ethos societal beliefs regarding peace.

Alternative Societal Beliefs: Security – Expressions which contradict views, beliefs and

thoughts regarding security or any aspect of the ethos societal beliefs regarding security.

Alternative Societal Beliefs: Unity – Expressions which contradict views, beliefs and thoughts

regarding unity or any aspect of the ethos societal beliefs regarding unity.

Alternative Societal Beliefs: Positive Collective Self-Image – Expressions which contradict

views, beliefs and thoughts regarding our positive collective self-image or any aspect of the

ethos societal beliefs regarding our positive collective self-image.

Additional Variables

Additional variables include both expressions and categories of expressions. While most of the

following variables were defined for this research, collective memory, an extremely important

manifestation of intractable conflict, relies on existing definitions.

121

Additional Expressions: Annexation of Territories (1948) – Mention of the word

“annexation” (‘סיפוח’ in Hebrew) in relation to actions of Israel, or the Israeli military, with

regard to events which took place during the 1948 War or immediately after, as a consequence of

the war. It should be noted that while the term “annexation” could have been examined in the

context of the territories occupied by Israel post-1967, such expressions rely heavily on legal

sources and express legal norms and therefore cannot be claimed to reflect a social ethos.

Additional Expressions: Occupation Territories (1948) – Mention of the word “occupation”

in relation to actions of Israel or of the Israeli military, with regard to events (in Hebrew ’כיבוש‘)

which took place during the 1948 War or immediately after as a consequence of the war. Similar

to the discussion regarding “annexation”, expressions of the word “occupation” are limited to

those regarding the 1948 War.

Additional Themes: Israel as a Rule of Law State – This variable depicts all expressions

which promote a positive image of Israel as a law abiding state. Previous studies of the

psychological aspects of intractable conflict have classified such manifestations as part of the

societal belief regarding self-glorification. However, given the unique judicial content of the

research, expressions depicting Israel as a rule of law state have been studied as a separate

variable. This theme includes manifestations which self-glorify Israel’s democratic regime in

general or its legal system in particular, for example, the use of the Hebrew proverb “there is law

and there are judges in Israel” (which is derived from the Midrash Rabbah expression ֵלית ִּדין , “

”ְוֵלית ַּדּיָן ). This theme does not include expressions according to which the State of Israel, the

government or any other body of the state has acted in accordance with the law, as these do not

include self-glorification.

Additional Themes: Justness of the State – Statement regarding the justness of the State of

Israel, the government or any body of the state. Similar to the definition of the variable regarding

Israel as a rule of law state, this variable includes all manifestations which promote a positive

image of the actions of the State of Israel, describing them as moral, good or just. This theme

does not include merely statements regarding the justness of the state’s legal arguments but an

additional justification for a state action which may reflect an ethos belief.

122

Justness of the state should not be confused with the ethos societal beliefs regarding justness of

our goals, which includes support for the Zionist movement and other amorphous issues.

Additional Themes: Need to Promote Rule of Law – Expressions of the need to promote rule

of law, human rights, justice or stricter moral standards, or the need to set a higher legal or moral

standard, which are made in the context of a state action or norm. Judges' opinions containing

expressions of this theme include more than an observation regarding the wrong or immoral

nature of the state: they offer an alternative course of action which can amend what they perceive

to be an injustice; for example, former president of the court, Justice Barak, in a petition dealing

with targeted killings, wrote: “Indeed, the struggle against terrorism has turned our democracy

into a "defensive democracy" or a "militant democracy" (…) However, we cannot allow that

struggle to deny our State its democratic character” (official translation, section 62).67

Additional Themes: Religion – This variable, which will be examined in the context of the

ethos expressions, includes quotation of religious texts or any mention of religious beliefs, ideas,

commandments, decree, dogmas, concepts etc., as well as the right to religious freedom or the

right to worship. While in some cases the use of religion is dependent upon the factual or legal

aspects of a particular decision, in other cases the religious content may operate in a similar

manner to ethos expressions – the research will explore similarities between expressions of

religion and other variables, including ethos expressions.

Additional Themes: Collective Memory – The research follows well-established definitions

used to establish the presence of collective memory in the context of societies which are a side to

an intractable conflict. The research will examine the statistical relations between this variable

and the ethos variables and it is assumed that some correlation exists between these variables.

Holocaust manifestations, which are part of the collective memory variable with regard to Israeli

Jewish society, are measured separately to allow for better understanding of the role of

67 HCJ 769/02 The Public Committee against Torture in Israel v. The Government of Israel.

123

expressions related to the Holocaust in decisions regarding the conflict and ethos expressions.

The following definition is taken from Bar-Tal (2011):68

“Collective memory is defined as representations of the past remembered by society members as

the history of the conflict (…). It presents a coherent and meaningful socially constructed

narrative that has some basis in actual events (…), but is biased, selective and distorted in ways

that meets the present needs of the society. During the conflict, collective memory focuses on at

least four of the following themes: First, it justifies the outbreak of the conflict and the course of

its development. Second, it presents own society in a positive light (…). Third, it describes the

rival society in delegitimizing ways (…) Fourth, it portrays own society as the victim of the

opponent (…). All these themes appear in the description of the history of the conflict.

It follows that opposing groups in a conflict will often entertain contradictory and selective

historical collective memories of the same events. By selectively including, or excluding, certain

historical events and processes from the collective memory and by characterizing positively the

ingroup and very negatively the outgourp, a group views itself and its historical experiences in

unique and exclusive ways (…). Collective memory provides a black and white picture, which

enables parsimonious, fast, unequivocal, and simple understanding of the "history" of the

conflict”’ (p. 11).

Additional Themes: Holocaust – All manifestations and discussions of the Holocaust. While in

some cases these expressions stem from the factual basis for the decision, in other decisions the

memory of the Holocaust is used to justify various state actions

Legal Variables

Additional data gathered for each decision include names of the judges and their individual

opinions; the substantive result of the decision: whether the Court has ruled in favor or against

the state, in cases where the state was involved in the proceedings, or in favor or against a

Palestinian side, in cases where this may be relevant.

68 Omitted from the quotes are references of previous research. All omissions are marked by (…).

124

Judges' names (including registrars) –This variable includes the names of all judges who

participated in writing the judicial decision.

The Wining Party – In order to examine the existence of a possible connection between ethos

expressions on the one hand and the judicial result on the other, each decision was marked as one

of the following options:

No Clear Winner – None of the parties to the decision prevailed.

Palestinian Loss - A Palestinian, who was a party to the decision, lost to the other party.

Palestinian Win - A Palestinian, who was a party to the decision, was successful.

Partial Win by Palestinian - A Palestinian, who was a party to the decision, was only partly

successful.

Partial Win by the State – No Palestinian was a side to the decision and the state, which

was a party to the decision, was only partly successful.

State Loss – No Palestinian was a party to the decision and the state, which was a party to

the decision, lost to the other party.

State Win – No Palestinian was a party to the decision and the state, which was a party to

the decision, was successful.

Other – Any other judicial result which does not coincide with one of the abovementioned

options.

Type of decision - Each judicial decision is clearly marked in each published decision and is part

of the official name of each decision. For example, a criminal appeal will include the words

“Criminal Appeal” (ערעור פלילי) as part of the title of the decision.

Extended panel – The number of judges giving the decision was five or more. The number of

judges in each decision is marked clearly.

Existing dissenting opinion– In cases when one or more of the judges is not in agreement with

the majority judges who deliver the opinion of the court. The existence of a dissenting opinion is

125

marked as such by the editors of the official publication of the court decisions and can also be

attained from reading the judicial opinion of each of the judges

126

Chapter VI – Results

Introduction

The research first stage - locating all decisions which relate to the conflict in all published

decisions of the court - has yielded a database consisting of more than 750 decisions. The second

stage has examined each database decision, identifying expressions of the ethos societal beliefs,

alternative beliefs and other variables such as collective memory and judges’ names. The

outcome was a total of more than 730 expressions of ethos societal beliefs, and hundreds

additional expressions of other research variables.

Given the extensive research data and the need to create a set of results that allow for the

emergence of trends, the following results were examined: first the most general results – related

to the whole database; second, a set of comparisons between yearly average results for ethos

societal beliefs and related variables; and third, individual databases were examined with regard

to specific years in which extensive use of the ethos has been observed.

The following sections present the most significant results while the final part of this chapter

includes discussion of the results – focusing on trends emerging from the research results.

General

The following tables and charts contain general characteristics of the database, for example, the

total number of decisions per year, decision types etc.

Table 1 presents distribution of the decisions of the Israeli Supreme Court that were included in

the research database according to years: The database amounts to a grand total of 757 decisions

of the Israeli Supreme Court (for types of decisions see Table 2 below) from 1948, the year the

court was established, until 2006, a period of 59 years in total, resulting in an average of 12.83

decisions per year, while standard deviation (σ) is 10.1. Given the need for comparison with

average ethos expressions per year, the following results are also displayed by chart 1.

127

Table 1 – Number of decision included in the database per year

Year Number of Decisions

1948 1 1949 2 1950 6 1951 14 1952 20 1953 13 1954 13 1955 4 1956 5 1957 9 1958 5 1959 4 1960 10 1961 7 1962 14 1963 10 1964 4 1965 5 1966 3

1967 3 1968 2 1969 3 1970 3 1971 4 1972 1 1973 3 1974 9 1975 2 1976 5 1977 5 1978 6 1979 6 1980 10 1981 17 1982 11 1983 20 1984 12 1985 18

128

1986 25 1987 17 1988 28 1989 40 1990 18 1991 24 1992 26 1993 20 1994 18 1995 9 1996 21 1997 12 1998 15 1999 14 2000 20 2001 16 2002 38 2003 32 2004 29 2005 41

200669 5 Total 757

Chart 1 below provides a visual expression of the number of decisions included in the research

database for each year. The graphic presentation of the results indicates that the relations

between the peak years, 1989 and 2005 - 40 and 41 decisions per year respectively - are not

isolated events but rather reflect the high points of two gradual inclines in the number of

database decisions per year. Chart 7 below examines possible correlations of Chart 1 results

with the research results regarding ethos societal beliefs.70

69 See Chapter IV, section III A for a discussion of the technical problems which may have resulted in a low number of decisions published by the official publication of the Israeli Supreme Court, the PADI. 70 Further discussion of the possible ramifications of Chart 1 results is available in the final chapter of this doctorate.

129

Chart 1 – number of database decisions per each year

Several legal aspects of the decisions were examined, including the legal type of each decision, a

category clearly delineated for each decision, and therefore not requiring subjective input by the

researcher. Table 2 provides data on the number and percentage of decisions for each legal type.

130

Table 2: Types of decisions included in the research database71

Type of decision Number of database decisions

Percentage

Administrative Detention Appeal 12 1.57% Administrative Petition Appeal and Request to Appeal 4 0.52% Appeal Permission Request 1 0.13% Bar Association Appeal 1 0.13% Civil Appeal 76 9.97% Civil Appeal Granted or Requested 13 1.71% Criminal Appeal 100 13.12% Elections Appeal 8 1.05% Further Hearing 7 0.92% High Court of Justice Petition 493 64.70% Knesset Election Case 1 0.13% Local Municipality Appeal 1 0.13% Motion72 8 1.05% Other Motions 4 0.52% Other Motions Civil 1 0.13% Other Motions Criminal 30 3.94% Prisoners Appeal 1 0.13% Retrial 1 0.13% Total 762 100.00%

As Table 2 demonstrates, the majority of decisions included in the research database were

petitions to the High Court of Justice (64.7 percent of total decisions included in the database),

while the second most frequent category, criminal appeals, consists of only 13.1 percent of total

decisions. The third category, civil appeals, amounts to a little less than 10 percent of the total

database decisions. With the addition of a related category, requests to receive the right for civil

appeal, civil appeal amounts to nearly 12 percent of total decisions. Another category, dealing

with other criminal motions, consists of almost 4 percent of the database decisions, thereby

criminal cases consist of 17 percent of total researched decisions.

Expressions of Ethos Societal Beliefs

71 The total number of decisions according to types is slightly larger than total number of decisions included in the database (762 compared with 757) reflecting the fact that a few decisions appear in the official publication as pertaining to more than one type. 72 “Hamratza” in Hebrew.

131

Table 3 represents the total number of expressions for each cluster of ethos societal belief for all

database decisions. The percentages of each societal belief, given the total number of

expressions, also appear in the table.73 Results indicate that Delegitimization of the opponent,

appears 266 times in all database decisions, i.e., it is responsible for more than a third (36.1

percent) of all ethos expressions. The second most frequently used ethos societal belief is the

theme of security, appearing in 194 of all researched decisions, consisting of an additional

quarter (26.3 percent) of all ethos societal beliefs. Other significant results are our own

victimization (14 percent of the total) and justness of our goals (9.4 percent).

Table 3 – Number and percentage of expressions for each ethos societal belief

Ethos societal beliefs Total Percentage

Delegitimization of the opponent 266 36.1%

Security 194 26.3%

Own victimization 103 14.0%

Justness of own goals 69 9.4%

Unity 42 5.7%

Positive collective self-image 38 5.2%

Patriotism 15 2.0%

Peace 10 1.4%

Total for all ethos societal beliefs 737 100%

The following are ten examples of expressions of ethos societal beliefs as found in database

decisions:

1. Delegitimization of the Opponent; Own Victimization

“In these days of threat to the State, surrounded by hostile nations, which have fought it in the

past with vicious rage and which continue to harass it (…) and want to eat it alive – in these

73 Each ethos societal belief appeared once or more in each decision, or, in some instances, did not appear at all and therefore the percentage is not calculated according to the number of decisions.

132

turbulent times people desert the country, moving to the enemy camp, and then return [to Israel],

pretending to be loyal citizens.” [my translation, O.S.L.]

HCJ 125/51 Hassin v Minister of Interior, PADI 5, 1386

2. Justness of our own goals; Delegitimization of the Opponent; Own Victimization

"The Arab-Israeli war was not a ‘civil war’, but a war between sovereign countries in

which the attackers – seven Arab states – wished to annihilate the entire capital and to

eliminate the memory of the State of Israel (…) the Arab States came to help the Arabs of

the land of Israel, and that the purpose of the war was to create a Palestinian state (…)

That was the claim-excuse of the invaders (….) but it was far from the truth” [my

translation, O.S.L.]

Criminal Appeal 44/52 Diab v. Attorney-General., PADI 6, 922.

3. Justness of our own goals

“The elementary right of every state is to preserve its liberty and its very existence when

faced with enemies from abroad and those who support them from within”. [my

translation, O.S.L.]

HCJ 253/64 Jeryis v. Haifa District Commissioner, PADI 18(4), 673

4. Delegitimization of the Opponent; Security

“Everyone knows that we have been “blessed” by a serious crime wave (…) If we add to that the

special security condition of our state and the actions of the terrorist organizations which do

not refrain from committing egregious crimes the likes of which have never been seen, it is

evident that we cannot forfeit any possible means of protection in the face of the dangers

which threaten the public who live in this state.” [my translation, O.S.L.]

CA 496/73 Ploni V. State of Israel, PADI 28(1) 714.

133

5. Delegitimization of the Opponent; Security; Justness of own goals

“Providing security in Judea and Samara requires the army to perform special tasks and

necessitates carrying out military actions from time to time, even in times of relative calm, to

anticipate the danger of acts of sabotage from outside, from the territories we hold or from

within. In this special situation of continuing guerrilla hostilities, one cannot clearly

differentiate between the authority granted to the military in times of active combat and in

times of calm. Even if the region near Bet El is quiet today, it is better to take preventive

steps.” [my translation, O.S.L.]

HCJ 606/78 Awib v. Minister of Defence, PADI 33(2), 113.

6. Delegitimization of the Opponent

“When it became clear that he [the petitioner] is a damaging and destructive influence and

the practical rational for granting a temporary stay permit must be reconsidered as well as the

issuance of the deportation order, a pervious decision revoking the deportation order, given in

light of previous circumstances, cannot prevent a renewed discussion now”. [my translation,

O.S.L.]

HCJ 159/84 Shaheen vs. the IDF Commander in the Gaza Strip, PADI 39(1), 309.

7. Our Victimization

“Israel at its early days - is it really necessary to say? – was forced into a war of survival.

Everyone knows that the guns brought during that time to Israel, from Czechoslovakia or

other places, were extremely essential, as it allowed Israel to protect its existence.” [my

translation, O.S.L.]

Civil Appeal 809/89 Mashur vs. Habibi, PADI 47(1), 1.

134

8. Delegitimization of the Opponent; Security

“If I entirely understood the opinion of my colleague, Justice Dorner, she believes that the

unfreezing of the demolition orders would have been lawful, had subsequent terrorist attacks –

terrorist attacks which led to the unfreezing – been performed by terrorists who resided in the

town where the first terrorists resided or by such terrorists who belonged to the family of the first

terrorists, whereas my opinion is that partners, for purposes of a murder scheme, of a

terrorist – if only after-death partners – are deemed as the terrorist himself, and all of

these are terrorists who are members of one "family".

The reason for this is that such suicide murderers tied their fate to the fate of their

partners in the murder-scheme and thus, in a way, became mutually responsible for one

another. And if we shall remember that the demolition of houses was intended for the

deterrence of the individual and the group, we will easily see that the purpose of deterrence

will be excessively achieved by way of freezing and unfreezing as the Respondent does. One

way or another, I did not know from where to take the authority to intervene in the

military commander's discretion pertaining to the timing of the demolition, if the same will

take place immediately after the act of terrorism or if the same will take place after time

shall have lapsed.”

HCJ 1730/96 Sabih v. Major General Ilan Biran Commander of IDF Forces in the Judea

and Samaria Region

9. Delegitimization of the Opponent; Security

“The State of Israel is involved in military activities (…) whose purpose is the return of

security to the region and the country. As part of these activities (…) the military is interested

in demolishing houses in which terrorists who have participated in killing and have spilled

blood resided”.

HCJ 6696/02 Amer v. Military Commander, PADI 56(6), 110.

135

10. Patriotism; Positive Collective Self-Image

“Israel finds itself in the middle of difficult battle against a furious wave of terrorism. Israel

is exercising its right of self-defense (…) The state fights in the name of the law and in the

name of upholding the law. The terrorists fight against the law and exploit its violation.

The war against terror is also the war of law against those who rise up against it (…)

Moreover, the State of Israel is founded on Jewish and democratic values. We established a

state that upholds the law—it fulfills its national goals, long the vision of its generations,

while upholding human rights and ensuring human dignity.”

HCJ 3451/02 Almandi v. Minister of Defence, PADI 56(3) 30.

Chart 2 reflects correlations between the total number of the four most prevalent ethos societal

beliefs: Delegitimization of the opponent, security, own victimization and justness of our goals.

Correlation was calculated for each of the six possible pairs of the four societal beliefs, from data

regarding the overall number of expressions for each year. All six pairs were found to have

strong positive relationships, the strongest correlation (r = .7) was found for own victimization

and justness of our own goal. All pairs have manifested r ≥ .5 suggesting the Court was using

expressions of additional types of prevalent ethos societal beliefs in its decisions in years in

which it has already used expressions of different types of prevalent ethos societal beliefs.

136

Chart 2 - Correlation between the most prevalent types of ethos societal beliefs

Charts 3-5 represent average expressions of security, delegitimization of the opponent and own

victimization as ethos societal beliefs per decision per year: All expressions for all decisions for

each researched year were added and the result was divided by the total number of decision per

year. The results of Charts 3-5 allow for additional calculations of standard deviation and

standard score (z score), as noted below in Tables 5-8 and Charts 8-11.

Chart 3 examines average ethos expressions per decision, per year for ethos societal beliefs

regarding security. The mean average (μ) is 0.31 while standard deviation (σ) is 0.44. Peak

periods are the early and late 1970s – both peaks deviate from the average mean by significantly

more than a single standard deviation.

137

Chart 3 – Average ethos expressions per decision, per year: Security

σ

= 0.44

μ = 0.31

Chart 4 examines average ethos expressions per decision, per year for ethos societal beliefs

regarding security. The mean average (μ) is 0.37 while standard deviation (σ) is 0.49. Peak

periods are mid-1960s, late 1970s and early 2000s. Both mid-1960s and late 1970s peaks deviate

from the average mean by significantly more than a single standard deviation.

0

0.5

1

1.5

2

2.5

31

94

81

94

91

95

01

95

11

95

21

95

31

95

41

95

51

95

61

95

71

95

81

95

91

96

01

96

11

96

21

96

31

96

41

96

51

96

61

96

71

96

81

96

91

97

01

97

11

97

21

97

31

97

41

97

51

97

61

97

71

97

81

97

91

98

01

98

11

98

21

98

31

98

41

98

51

98

61

98

71

98

81

98

91

99

01

99

11

99

21

99

31

99

41

99

51

99

61

99

71

99

81

99

92

00

02

00

12

00

22

00

32

00

42

00

52

00

6

Security

Security

138

Chart 4 – Average ethos expressions per decision, per year: Delegitimization of the

opponent

σ = 0.49

μ = 0.37

Chart 5 examines average ethos expressions per decision, per year for ethos societal beliefs

regarding security. The mean average (μ) is 0.14 while standard deviation (σ) is 0.22. Peak

periods are mid-1960s, late 1970s and early 2000s. Both Mean average and standard deviation

for own victimization are significantly lower than for the other prominent ethos societal beliefs

(see Charts 3 and 4).

139

Chart 5 – Average ethos expressions per decision, per year: Own victimization

σ = 0.22

μ = 0.14

Chart 6 presents the combined results of Charts 3-5, allowing for parallel trends of the three

most prevalent societal beliefs to emerge. Table 10 below will explore correlations between

peaks in average expressions for more than a single predominant ethos societal belief.

140

Chart 6 – Average ethos expressions: security, Delegitimization of the opponent and own

victimization, per year, per decision

Chart 7 provides a visual expression of the numbers of decisions per year (divided by 10, to

allow correlative trends to emerge) and the average number, per year, per decision, of ethos

societal beliefs: security, delegitimization of the opponent and own victimization. While the

number of database decisions increases significantly during the late 1980s and the early 2000s,

these peaks do not correspond with peaks in the use of ethos expressions. Moreover findings for

1964, 1965, 1978, and 1979 - the four years which manifest the highest combined standard

scores for the most frequently used ethos societal beliefs (see discussion regarding Table 10

below) - are not reflected by a corresponding rise in the number of decisions. Calculating

correlation reveals that no relationship (or a negligible negative relationship) exists between the

total number of decisions per year and the average number, per year, per decision, of prevalent

ethos societal beliefs: security, delegitimization of the opponent and own victimization (.03 ≤ r

≤.17).

141

Chart 7 - Average ethos expressions: security, Delegitimization of the opponent and own

victimization, per year, per decision and number of decisions per year (divided by 10)

Table 4 presents an arithmetic mean average and standard deviation for expressions of all ethos

societal beliefs per decision per year. This information will be addressed by Tables 5-8 and

Charts 8-11.

Table 4 – Average number and standard deviation per decision per year for all database

periods of all prevalent ethos societal belief expression

Ethos Beliefs

Average (μ)

Standard

deviation

(σ)

Delegitimization of the opponent 0.37 0.49

Security 0.31 0.44

Own victimization 0.14 0.22

Justness of own goals 0.10 0.17

Tables 5-8 and Charts 8-11 depict standard scores of the average expressions for each database

year regarding each of the four predominant ethos societal beliefs: Delegitimization of the

142

opponent, security, own victimization and justness of own goals. The standard score is calculated

in the following manner:

(x = raw score)

The results of Tables 5-8 and Charts 8-11 for each year from 1948 to 2006, appear in order of

the standard score, from the lowest to the highest, hence not in chronological order. These results

are similar with respect to two important aspects: first, no single standard score is below one

standard deviation and second, few scores exceed a single standard deviation. In other words,

while some yearly averages of each predominant ethos expression are higher than a single

standard deviation, no yearly average is significantly lower than the combined average for each

of the predominant ethos expressions. Furthermore, after standardization, the results are

markedly different than the normal (or Gaussian) distribution. However, the results are not

statistical but represent the score for the whole population, rather than a sample.

Table 5 (and the following Chart 8, a visual expression of Table 5 results) contains the results

for standard scores for each database year for expressions of ethos societal belief regarding

justness of own goals. Of a total of 59 researched years, 54 (91.5 percent) are between a single

standard deviation. Only five results (marked in bold) have a standard score higher than a single

standard deviation, while none is lower than a single standard deviation.

Table 5 – Standard score per year – expressions of ethos societal belief: justness of own

goals

Year Standard

score

1948 -0.58

1949 -0.58

1950 -0.58

1951 -0.16

1952 0.29

1953 -0.58

1954 -0.13

143

1955 -0.58

1956 -0.58

1957 0.07

1958 -0.58

1959 -0.58

1960 0.00

1961 -0.58

1962 -0.16

1963 -0.58

1964 0.87

1965 0.58

1966 -0.58

1967 -0.58

1968 -0.58

1969 -0.58

1970 5.23

1971 -0.58

1972 -0.58

1973 1.36

1974 0.71

1975 -0.58

1976 -0.58

1977 0.58

1978 1.36

1979 3.30

1980 1.75

1981 0.10

1982 -0.58

1983 -0.29

1984 0.39

1985 -0.26

1986 -0.35

1987 0.10

1988 -0.16

1989 -0.14

1990 -0.58

1991 -0.58

1992 -0.36

1993 -0.58

1994 -0.26

1995 -0.58

144

1996 0.53

1997 -0.58

1998 -0.58

1999 -0.16

2000 -0.29

2001 -0.58

2002 -0.27

2003 0.69

2004 0.42

2005 0.27

2006 -0.58

Chart 8 - Standard score for each year – expressions of ethos societal belief: justness of own

goals

Table 6 (and Chart 9, a visual expression of Table 6 results) contains the standard scores for

each database year for expressions of ethos societal belief regarding own victimization. From a

total of 59 researched years 53 (89.8 percent) are between a single standard deviation. Only six

results (marked in bold) have a standard score higher than a single standard deviation, while

none is lower than a single standard deviation.

Table 6 – Standard score per year – expressions of ethos societal belief: own victimization

Year Standard

score 1948 -0.63

145

1949 -0.63

1950 -0.63

1951 0.65

1952 0.04

1953 -0.28

1954 -0.28

1955 -0.63

1956 -0.63

1957 -0.63

1958 -0.63

1959 -0.63

1960 -0.63

1961 -0.63

1962 -0.31

1963 -0.18

1964 3.84

1965 3.84

1966 -0.63

1967 0.86

1968 -0.63

1969 -0.63

1970 -0.63

1971 -0.63

1972 -0.63

1973 -0.63

1974 0.36

1975 -0.63

1976 -0.63

1977 0.27

1978 2.35

1979 2.35

1980 1.16

1981 -0.10

1982 -0.63

1983 -0.40

1984 0.49

1985 0.12

1986 -0.09

1987 0.42

1988 -0.31

1989 -0.52

146

1990 -0.63

1991 -0.63

1992 -0.28

1993 0.27

1994 -0.63

1995 0.36

1996 -0.63

1997 -0.25

1998 -0.03

1999 0.33

2000 -0.40

2001 -0.63

2002 -0.04

2003 0.91

2004 1.37

2005 -0.19

2006 -0.63

Chart 9 – Standard score for each year – expressions of ethos societal belief: own

victimization

Table 7 (and Chart 10, a visual expression of Table 7 results) contains the results for standard

scores for each database year for expressions of ethos societal belief regarding security. From a

147

total of 59 researched years, 56 (94.9 percent) are between a single standard deviation. Only

three results (marked in bold) have a standard score higher than a single standard deviation,

while none is lower than a single standard deviation.

Table 7 – Standard score per year – expressions of ethos societal belief: Security

Year Standard score

1948 -0.72

1949 0.43

1950 0.43

1951 0.26

1952 -0.49

1953 0.69

1954 -0.19

1955 0.43

1956 -0.72

1957 -0.21

1958 -0.26

1959 0.43

1960 -0.49

1961 -0.07

1962 -0.72

1963 -0.72

1964 0.43

1965 0.20

1966 0.04

1967 -0.72

1968 -0.72

1969 -0.72

1970 -0.72

1971 1.00

1972 -0.72

1973 5.39

1974 -0.21

1975 -0.72

1976 -0.72

1977 -0.26

1978 0.43

1979 3.86

1980 1.11

148

1981 -0.05

1982 0.32

1983 -0.15

1984 -0.15

1985 -0.08

1986 -0.35

1987 -0.32

1988 -0.31

1989 -0.49

1990 0.43

1991 -0.53

1992 -0.19

1993 -0.49

1994 -0.59

1995 0.04

1996 -0.07

1997 0.04

1998 -0.72

1999 -0.56

2000 -0.26

2001 -0.58

2002 -0.18

2003 -0.08

2004 0.54

2005 -0.44

2006 0.20

149

Chart 10 – Standard score for each year – expressions of ethos societal belief: Security

Table 8 (and Chart 11, a visual expression of Table 8 results) contains the results for standard

scores for each database year for expressions of ethos societal belief regarding Delegitimization

of the opponent. From a total of 59 researched years, 52 (88.1 percent) are between a single

standard deviation. Only seven results (marked in bold) have a standard score higher than a

single standard deviation, while none is lower than a single standard deviation.

Table 8 – Standard score per year: expressions of ethos societal belief: Delegitimization of

the opponent

Year Standard score

1948 -0.76

1949 -0.76

1950 -0.76

1951 -0.03

1952 0.05

1953 0.02

1954 -0.45

1955 -0.76

1956 -0.35

150

1957 -0.76

1958 -0.76

1959 -0.76

1960 -0.56

1961 0.11

1962 -0.18

1963 -0.56

1964 2.79

1965 4.10

1966 -0.76

1967 -0.08

1968 0.25

1969 -0.76

1970 -0.76

1971 -0.25

1972 -0.76

1973 -0.08

1974 1.04

1975 -0.76

1976 -0.76

1977 1.27

1978 3.29

1979 1.94

1980 -0.15

1981 0.91

1982 0.53

1983 0.56

1984 -0.42

1985 1.49

1986 -0.27

1987 0.67

1988 -0.47

1989 -0.40

1990 -0.08

1991 -0.67

1992 -0.14

1993 -0.35

1994 -0.76

1995 -0.31

1996 -0.37

1997 -0.25

151

1998 -0.62

1999 -0.47

2000 -0.05

2001 -0.50

2002 0.15

2003 0.25

2004 0.08

2005 -0.46

2006 -0.35

Chart 11 – Standard score for each year – expressions of ethos societal belief:

Delegitimization of the opponent

Although depicting different and independent facets of the ethos of the conflict, the overall trend

emanating from Tables 5-8 is a similar one: all data from Tables 5, 6, 7 and 8 suggests none of

the scores for predominant ethos societal beliefs is lower than a single standard deviation (-1σ),

Table 9, which is arranged chronologically, includes standard scores for years in which the

highest positive standard scores for one (or more) of the ethos societal beliefs was higher than

the absolute value of the lowest standard score for the same ethos societal belief. For example,

the lowest score for ethos societal belief: Delegitimization of the opponent is -0.76. Hence, only

positive standard scores above 0.76 were used as data in Table 9. Table 9 contains data for all

highest standard scores and the sum of all standard scores for the four predominant ethos societal

beliefs for each corresponding year.

152

Table 9 – Accumulated highest standard scores of most prevalent societal beliefs

chronologically arranged

Years justness of own goals

own victimization

Security Delegitimization of the opponent

accumulated Standard

Score Rank

1964 0.87 3.84 0.43 2.79 7.93 3 1965 0.58 3.84 0.2 4.1 8.72 2 1967 -0.58 0.86 -0.72 -0.08 -0.52 15 1970 5.23 -0.63 -0.72 -0.76 3.12 7 1971 -0.58 -0.63 1 -0.25 -0.46 14

1973 1.36 -0.63 5.39 -0.08 6.04 5 1974 0.71 0.36 -0.21 1.04 1.9 9 1977 0.58 0.27 -0.26 1.27 1.86 10 1978 1.36 2.35 0.43 3.29 7.43 4 1979 3.3 2.35 3.86 1.94 11.45 1 1980 1.75 1.16 1.11 -0.15 3.87 6 1981 0.1 -0.1 -0.05 0.91 0.86 13 1985 -0.26 0.12 -0.08 1.49 1.27 12 2003 0.69 0.91 -0.08 0.25 1.77 11 2004 0.42 1.37 0.54 0.08 2.41 8

The results indicate that 1979 had the highest accumulated standard score with regard to the use

of the four predominant ethos societal beliefs by the court, having a standard score of 11.45. The

significance of 1979 as a peak year is further supported given that 1978 has attained an

accumulated standard score of 7.43 (fourth highest standard score), 1980 has attained an

accumulated standard score of 3.87 (sixth highest standard score). An additional peak period

includes 1964-5, the third and second highest accumulated standard scores, respectively (7.93

and 8.72). Another significant result refers to 1973, the fifth highest accumulated standard score

(6.04); 1970, the seventh highest (3.12) and 2004, eighth highest (2.41).

Further study of all decisions of the six years in which the average use of the predominant ethos

expressions was the most intensive reveals the following:

153

1. Five of the six database decisions for 1979, which has the highest accumulated standard score

with regard to the use of the four predominant ethos societal beliefs, contains a low number of

ethos expressions (or none at all) while only a single decision contains a large number of

expressions of the ethos.

2. For 1965, the second highest average yearly score regarding expressions of the conflict per

decision, out of five decisions, only one has a significant number of expressions of ethos societal

beliefs.

3. For 1964, the third highest average yearly score for a single year regarding expressions of the

conflict per decisions, out of four decisions, only one has a significant number of expressions of

ethos societal beliefs.

4. In 1978, the fourth highest yearly score, there is a similar if somewhat less exclusive trend: of

the six decisions, two (rather than one) manifest extensive use of the ethos – one decision

contains five ethos expressions, while the other, contains twelve ethos expressions.

5. The fifth highest yearly score, 1973, manifests a similar trend: of the three decisions included

as part of the research database, only one contains a significant number of ethos expressions.

6. A similar trend can be observed regarding the sixth highest yearly score, 1980, in which a

single case contains a large number of ethos expressions while all other nine database decisions

contain few expressions of the ethos of the conflict.

Alternative Beliefs

Chart 12 presents the percentage of ethos societal beliefs and alternative beliefs out of total

beliefs (ethos and alternative beliefs). As noted, alternative beliefs account for less than 13

percent of overall beliefs expressed by the court in decisions included in the research database,

while ethos societal beliefs consist of more than 87 percent of the total societal beliefs. In other

words, an ethos belief is 6.81 times more likely to appear in a decision than an alternative belief.

154

Chart 12 - Percentage of ethos societal beliefs and alternative societal beliefs out of total

societal beliefs

Chart 13 consists of a breakdown of all societal beliefs, according to their common trait – either

part of the ethos of the conflict or alternative beliefs which represent a different voice, opposed

to the ethos conflict, refuting each of the assumptions underlying the ethos societal beliefs. For

all individual types of societal beliefs, ethos expressions are significantly higher than alternative

beliefs regarding the same topic, for example, 266 as opposed to 16 expressions of

Delegitimization of the opponent (ethos and alternative); 194 and 26 expressions regarding

security; 103 and 19 for own victimization and 69 as opposed to 18 regarding societal beliefs:

justness of our goals. It should be noted that while the difference is considerable – ethos

expressions appear 6.81 times more than alternative beliefs in all database decisions – the results

were only available after the research ended and all data regarding ethos expressions and

alternative beliefs were added.

13%

87%

Total Alternative Beliefs

Total Ethos Beliefs

155

Chart 13 - Ethos Beliefs & Alternative Beliefs: All Themes

The following are examples of expressions of alternative beliefs as found in database decisions:

1. Alternative Expressions: Israeli positive self-image and security

“The elementary emotion of justness is agitated by the claim that the military authorities cannot

remove the Kibbutz which resides on the land, given that the law does not provide them with the

needed powers, given the lack of a decision of an authorized court, ordering the removal of the

trespassers from the land. When the illegal expulsion of the petitioners was made, the army

office or those who were interested in guiding him to achieve that [goal O.S.L.], did not

bother to ascertain in advance that the law granted them the powers to commit the act, and

now, when the injustice caused to the petitioners should be rectified, the law becomes an

impediment before them.” (p. 751).

HCJ 36/52, Al-Nedaf v. the Minister of Defense, PADI 6(2) 750.

2. Alternative Expressions: Security

“Here we have to establish that there is no magic in the words “security reasons” or

“security conditions” and similar expressions to justify the activities of the authorized body

and to deter this court from promoting just acts”. [my translation, O.S.L.]

HCJ 188/53 Rashid v. Verbin, Military Commander in the Jerusalem Corridor, 7, 941, 943.

156

3. Alternative Expressions: Delegitimization of the opponent

“(…) The third interpretation will entail an unimaginable result. The right of citizenship will

automatically be stripped of thousands of non-Jewish inhabitants, whose only sin was that

they were under enemy rule (…) even if they have stayed there for only one day”. [my

translation, O.S.L.]

Further Hearing 3/62 Minister of the Interior v. Mussa, 16, 2467.

4. Alternative Expressions: Positive collective self-image

“This time, we have heard the representatives of the settlers themselves and it seems to me that

we must not ignore their main argument. I do emphasize: I do not wish to refer to events which

occurred recently in which the members of Gush Emunim (an organization which includes

the settlers before us) were exposed as people who do not accept the rule of the army and

even do not hesitate to express their objection violently. I do not wish to refer to these events,

as we do not have certified knowledge regarding the degree to which the settlers before us

sympathize with the actions of others in other places.”

HCJ 390/79 Duweikat v. Government of Israel, PADI 34(1) 1.

5. Alternative Expressions: positive collective self-image

“The time has come for all sections of society to know that committing acts of violence with

an ethnic background against peaceful citizens (…) will entail grave, severe and painful

penalties (…) The fact, that during the same period a shed, in which workers from the territories

was burnt down in Or-Yehuda, causing the death of the workers, demonstrates that the incident

discussed was not a singular and unusual event, but that in certain groups dangerous tendencies

can be found, which should be uprooted”. [my translation, O.S.L.]

CA 652/88 State of Israel v. Saadia, 42(4), 523.

6. Alternative Expressions: Justness of our goals

“The matter of settlers and settlements is in public dispute.” [my translation, O.S.L.]

HCJ 2148/94 Gilbert v. Chairman of the Investigating Committee for the Examination of

the Massacre in Hebron , IsrSC 48(3) 573

157

7. Alternative Expressions: Own victimization

“The armed conflict has left many dead and wounded on the Palestinian side as well.”

HCJ 2056/04. Beit Sourik Village Council v. The Government of Israel, IsrSC 58(5) 807.

Charts 14-16 compare the three predominant ethos alternative expressions: own victimization,

justness of our goals and security. The trend emerging from the three charts is that the average

number of expressions per decision per year is much higher for each ethos societal belief than for

the corresponding alternative beliefs. Also clearly visible in the following charts are zero levels

of alternative expressions for much of the researched period.

Chart 14 demonstrates the overall limited number of expressions of alternative beliefs regarding

own victimization as opposed to ethos expression of the same theme – prevalent only for a single

year during the 1950s, emerging again during the early 1990s – and for two years higher than

expressions of ethos beliefs regarding own victimization.

Chart 14 - Ethos & Alternative Expressions per decision: own victimization

0

0.2

0.4

0.6

0.8

1

1.2

1948

1949

1950

1951

1952

1953

1954

1955

1956

1957

1958

1959

1960

1961

1962

1963

1964

1965

1966

1967

1968

1969

1970

1971

1972

1973

1974

1975

1976

1977

1978

1979

1980

1981

1982

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

Own Victimization

Alternative: OwnVictimization

158

Chart 15 demonstrates the overall limited number of expressions of alternative beliefs regarding

justness of our goals as opposed to ethos expression of the same theme – prevalent for a single

year during the 1950s, a single year during the early 1980s and emerging again during the mid-

1990s. Expressions of alternative beliefs regarding justness of our goals are only more prevalent

for two years than expressions of ethos beliefs regarding justness of our goals.

Chart 15 - Ethos & Alternative Expressions per decision: Justness of our goals

Chart 16 demonstrates the overall limited number of expressions of alternative beliefs regarding

justness of our goals as opposed to ethos expression of the same theme – prevalent for a single

year during the 1950s, emerging again during the early 1990s. Expressions of alternative beliefs

regarding security are only more prevalent for a single year than expressions of ethos beliefs

regarding justness of our goals.

0

0.2

0.4

0.6

0.8

1

1.2

1948

1949

1950

1951

1952

1953

1954

1955

1956

1957

1958

1959

1960

1961

1962

1963

1964

1965

1966

1967

1968

1969

1970

1971

1972

1973

1974

1975

1976

1977

1978

1979

1980

1981

1982

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

Alternative: Justness ofown goals

Justness of own goals

159

Chart 16 - Ethos & Alternative Expressions per decision: Security

Additional Data and Ethos Societal Beliefs

Chart 17 depicts the rate (in percentage) of decisions in which each of the four predominant

ethos societal beliefs are found in all decisions as compared to decisions which include

expressions of collective memory or the Holocaust. For example, 49.3 percent of all decisions

which include expressions of collective memory also include expressions of delegitimation as an

ethos societal belief. The data is compared to the percentage of expressions of each prevalent

ethos societal belief total for all database decisions which contain expressions of ethos societal

beliefs. While expressions of the Holocaust or collective memory are followed by an increase in

all types of prevalent expressions of the predominant ethos societal beliefs, the most significant

correlation is between justness of our goals and collective memory (70.1 percent), security and

the Holocaust (63.9) and justness of our goals and the Holocaust (55.6).

0

0.5

1

1.5

2

2.5

319

4819

4919

5019

5119

5219

5319

5419

5519

5619

5719

5819

5919

6019

6119

6219

6319

6419

6519

6619

6719

6819

6919

7019

7119

7219

7319

7419

7519

7619

7719

7819

7919

8019

8119

8219

8319

8419

8519

8619

8719

8819

8919

9019

9119

9219

9319

9419

9519

9619

9719

9819

9920

0020

0120

0220

0320

0420

0520

06

Security

Alternative: Security

160

Chart 17 - Collective Memory, Holocaust and Ethos Societal Beliefs

Collective Memory n=67

Holocaust n=36

The following are examples of collective memory as found in database decisions:

“In the 1950s, the retaliation policy was practiced. In response to damage to Israel's

security and the murder of Jews by infiltrators and terrorists, military units crossed the

border and struck targets that were designated to them. In these retaliation acts also civilians

who were across the border were injured (…).”

HCJ No. 1730/96 Sabih v. Major General Ilan Biran, Commander of the IDF Forces in the Judea

and Samaria Region, 50(1), 353 [Translated by Hamoked: Center for the Defence of the

Individual]

“It goes without saying (…) that freedom of worship for Jews is their natural right which is

deeply embedded in the long history of the people of Israel” [my translation, O.S.L]

H.C.J. 222/68 Nationalistic Society v. The Minister of Police, 24(2) Sup. Ct. Dec. 141

Table 10 examines correlation between decisions of two possible legal results: first, decisions

which result in a Palestinian loss and second, decisions which end in a Palestinian win - and

161

expressions of ethos societal beliefs. Row 1 and 3 depicts the number of decisions resulting in

either Palestinian loss or win and the number of decisions containing expressions of the four

prominent ethos societal beliefs for both types of decisions. Table 10 does not depict the

frequency of use of the ethos in decisions resulting in either a Palestinian win or a Palestinian

loss.

The results are, in most cases, similar to the percentage of decisions containing expressions of

the four prominent ethos societal beliefs for the general database decisions. However, two results

differing from this trend relate to expressions of Delegitimization of the opponent and security:

Both appear more in decisions resulting in a Palestinian loss than the average for all database

decisions (2.85% and 4.93% respectively).

Table 10 – Number and percentage of decisions resulting in Palestinian loss or Palestinian

win which includes expressions of prevalent ethos societal beliefs

Total decisions Delegitimization

of the Opponent

Justness of our goals

Victimization Security

Palestinian Loss – Number of decisions

346 83 24 29 76

Percent of decisions containing expressions - Pal. Loss

-

23.99% 6.94% 8.38% 21.97%

Palestinian Win – Number of decisions

82 17 6 7 14

Percent of decisions containing expressions - Pal. Win

-

20.73% 7.32% 8.54% 17.07%

Palestinian win: n=82

Palestinian loss: n=346

162

Table 11 depicts possible correlation between decisions resulting in a Palestinian loss or a

Palestinian win and expressions of all ethos societal beliefs (unlike Table 10 results) or

alternative societal beliefs. Table 11 demonstrates a significant difference in the use of

alternative beliefs expressions: 4.9 percent Palestinian losses have included expressions of

alternative beliefs while 31.7 percent of decisions resulting in a Palestinian win manifest

alternative belief expressions. The results with regard to ethos expressions reveal an opposite

trend: 67.9 percent of Palestinian losses included expressions of the ethos of the conflict while

only 62.2 percent of decisions resulting in a Palestinian win included expressions of ethos

beliefs.

Table 11 – Expressions of Ethos of conflict and alternative beliefs in decisions resulting in

Palestinian win or loss

Palestinian Loss Palestinian Win

Ethos Societal Beliefs 67.9% 62.2%

Alternative Beliefs 4.9% 31.7%

Palestinian win: n=82

Palestinian loss: n=346

Table 12 examines two judicial aspects of all database decisions: the existence of expressions of

the four most prominent ethos societal beliefs in decisions including a dissenting opinion and in

decisions including an extended panel of judges (while both can appear simultaneously in the

same decision they were researched separately). The results are compared to the data available

on the top row: percentage of decisions containing expression of one of the four prominent ethos

societal beliefs out of all database decisions. The results suggest decisions including either

dissenting opinions or an extended panel have significantly more expressions of each of the four

predominant ethos societal beliefs – usually more than twice than the average frequency.

163

Table 12 - Expressions of Ethos of conflict in decisions resulting in Dissenting opinions and

extended panels

Total

decisions

Delegitimization of the Opponent

Justness of our goals

Victimization Security

Total Number of decisions

737

266 69 103 194

Percent of decisions

containing type of expression of total decisions

-

21.14% 6.87% 8.59% 17.04%

Dissenting Opinion –

Number of decisions

59 25 12 14 17

Percent of decisions containing

expressions - Dissenting Opinion

-

42.37% 20.34% 23.73% 28.81%

Extended Panel – Number of

decisions

30 12 10 9 10

Percent of decisions containing

expressions - Extended Panel

-

40.00% 33.33% 30.00% 33.33%

Dissenting Opinion n = 59

Extended Panel n = 30

Summary of Major Research Results

The following presents the major research results which will be discussed in the next section of

this chapter.

1. Four prominent ethos societal beliefs were found in database decisions: Delegitimization of

the opponent; security; own victimization and justness of own goals.

164

2. Ninety percent of the yearly results of the average number of expressions per decision per

year, for each of the four ethos societal beliefs, are within less than one standard deviation of

the average number of expressions per decision per year for the whole database period.

3. Peaks in expressions of predominant ethos societal beliefs of the conflict are evident in

specific periods; 1979 had the highest accumulated standard score with regard to the use of

the four predominant ethos societal beliefs by the court, having a standard score of 11.45.

The significance of 1979 as a peak year is further supported given that 1978 attained an

accumulated standard score of 7.43 (fourth highest standard score), and 1980 attained an

accumulated standard score of 3.87 (sixth highest standard score). An additional peak period

is 1964-5, the third and second highest accumulated standard scores, respectively (7.93 and

8.72). Other significant results are 1973, the fifth highest accumulated standard score (6.04),

1970, seventh highest (3.12) and 2004, eighth highest (2.41).

4. Ethos societal beliefs are predominantly more evident than alternative beliefs: 87 percent as

compared to 13 percent. For all eight clusters of societal beliefs, average of ethos of conflict

expressions per year is significantly higher than average of alternative beliefs regarding the

same topic.

5. 4.9 percent of decisions resulting in a Palestinian loss have included expressions of

alternative beliefs while 31.7 percent of decisions resulting in a Palestinian win manifested

alternative beliefs expressions. The results with regard to expressions of ethos of the conflict

reveal an opposite trend: 67.9 percent of Palestinian losses included expressions of the ethos

of the conflict while only 62.2 percent of decisions resulting in a Palestinian win included

expressions of ethos of the conflict societal beliefs.

6. Decisions including either dissenting opinions or an extended panel have significantly more

expressions of each of the four predominant ethos societal beliefs – usually more than twice

the average in all database decisions.

7. The extent to which the Supreme Court has dealt with the conflict in its published decisions

(as manifested by the number of decisions per year) is not a major factor influencing the

extent to which the ethos of the conflict is used by the court.

8. An expression of one theme of ethos of conflict in a database decision increases the

likelihood of an appearance of additional themes in the same decision.

165

Chapter VII – Discussion and Conclusions

I. Introduction and Summary of Main Research Results

The present research examines the extent to which the Supreme Court of the State of Israel has

utilized Israeli Jewish society's ethos of the conflict in published decisions related to the conflict,

from 1948 until the end of 2006. Following a brief summary of the research results, the chapter

explores the research findings regarding the reflection of the ethos of conflict in Court decisions,

its possible roles and functions. The final section discusses research limitations, as well as

contributions of the present study to future research.

The following presents the major research results which will be discussed in the next section of

this chapter.

Four prominent societal beliefs of the ethos of conflict were found in database decisions:

delegitimization of the opponent; security; own victimization and justness of own goals.

Ninety percent of the yearly results of the average number of expressions per decision per

year, for each of the four ethos societal beliefs, are within less than one standard deviation of

the average number of expressions per decision per year for the whole database period.

Peaks in expressions of predominant societal ethos of the conflict beliefs are evident in

specific periods: 1979 had the highest accumulated standard score with regard to the use of

the four predominant ethos societal beliefs by the court, having a standard score of 11.45.

The significance of 1979 as a peak year is further supported given that 1978 attained an

accumulated standard score of 7.43 (fourth highest standard score), and 1980 attained an

accumulated standard score of 3.87 (sixth highest standard score). An additional peak period

is 1964-5, the third and second highest accumulated standard scores, respectively (7.93 and

8.72). Other significant results are 1973, the fifth highest accumulated standard score (6.04),

1970, seventh highest (3.12) and 2004, eighth highest (2.41).

Societal beliefs of ethos of conflict are predominantly more evident than alternative beliefs:

87 percent as compared to 13 percent. For all eight clusters of societal beliefs, the average of

166

ethos of conflict expressions per year is significantly higher than the average of alternative

beliefs regarding the same topic.

4.9 percent of decisions resulting in a Palestinian loss included expressions of alternative

beliefs while 31.7 percent of decisions resulting in a Palestinian win manifested alternative

belief expressions. The results with regard to expressions of ethos of the conflict reveal an

opposite trend: 67.9 percent of Palestinian losses included expressions of the ethos of the

conflict while only 62.2 percent of decisions resulting in a Palestinian win included

expressions of ethos of the conflict societal beliefs.

Decisions including either dissenting opinions or an extended panel have significantly more

expressions of each of the four predominant ethos societal beliefs – usually more than twice

the average in all database decisions.

The extent to which the Supreme Court has dealt with the conflict in its published decisions

(as manifested by the number of decisions per year) is not a major factor influencing the

extent to which the ethos of the conflict is used by the court.

An expression of one theme of ethos of conflict in a database decision increases the

likelihood of an appearance of additional themes in the same decision.

Use of Ethos of Conflict

Prior to examining the different possible roles and functions undertaken by the ethos of the

conflict in the Court’s published decisions regarding the conflict, the following section will

examine present research findings to establish the extent of the use of this ethos. A prominent

use of the ethos by the Court corresponds to the results of the previous studies regarding the

appearance of similar themes in Israel’s social, political, cultural and educational institutions and

channels of communications (see Chapters 1 and 2).

While the study population consists of a total of 757 published decisions of the Israeli Supreme

Court (see Chapter 6, Charts 1 & 2), only 737 expressions of ethos beliefs were found in total

(see Chapter 6, Table 3), or, in other words, an average of slightly less than one expression per

decision was found. The following discussion reveals that ethos expressions do play a significant

167

role in published Court decisions related to the conflict, as the frequency of ethos expressions

changes in relation to the legal, political and social significance of the Court’s decisions.

In short, the following arguments are discussed in relation to the extent of the use of the ethos:

First, ethos expressions are substantially more prevalent than alternative beliefs.

Second, ethos expressions are significantly more prevalent in decisions of substantial political,

social or legal significance, than in average Court decisions (which were included in the research

database). This argument is discussed first, with regard to the year manifesting the highest

standard score of the four predominant ethos societal beliefs (termed ‘peak years’), and second

by examining use of the ethos in Court decisions of an extended panel or containing a dissenting

opinion.

Third, the four most predominant clusters of ethos societal beliefs correlate with findings of

previous research regarding the most pervasive clusters of ethos societal beliefs for Israeli Jewish

society.

Fourth, the inclusion of an ethos expression in a database decision increases the likelihood of an

appearance of an additional ethos expression, of a different cluster, appearing in the same

decision.

Fifth, the extent of use of ethos expressions is remarkably consistent throughout the researched

period, from 1948 until 2006.

The following sections will examine these arguments in detail.

Extent of Use - Ethos Expressions and Alternative Beliefs

The present research found that ethos societal beliefs are more dominant than alternative beliefs:

In general, ethos beliefs are 6.81 times more likely to appear in a database decision than

168

alternative societal beliefs (see Chapter 6, Chart 12). Furthermore, the number of expressions

for each of the eight types of ethos societal beliefs is significantly higher than the corresponding

type of alternative belief. These findings reflect a psychological process termed ‘collective

amnesia’ or the limited ability of a society which is a side to an intractable conflict to discuss

contents contradictory to its worldview given its destructive potential regarding society’s

adherence to conflict goals, mobilization for participation in conflict and positive self-image

(Jacoby, 1975; Baumeister and Hastings, 1997; Maksudyan, 2009; Tint, 2010; Winter, 2010;

Bar-Tal, 2013). Researchers note that receiving contradictory information impedes society

members’ perception of the conflict as being intractable (Baumeister & Hastings, 1997;

Langenbacher, 2010; Tint, 2010; Bar-Tal, Oren & Nets-Zehngut, in press). In the context of the

present research, the marked difference between pervasiveness of ethos expressions, as

compared to the sparseness of alternative societal beliefs, implies that ethos expressions are

predominant, thereby pointing to their important roles or functions in relation to Court published

decisions regarding the conflict. As noted in the following section, alternative beliefs have

played a prominent role in only one of the six most prominent key decisions: the ‘Elon Moreh’

case, a rare Palestinian win. The remaining five key decisions which include dozens of ethos of

conflict expressions contain only two expressions of alternative beliefs. Therefore, expressions

of alternative beliefs are not a mitigating factor which lessens the impact of ethos of conflict

expressions in key decisions. For a discussion of alternative beliefs and societal ethos of conflict

beliefs in the unique context of court cases resulting in a Palestinian loss, see below, at section

III.

Ethos Expressions in Decisions of Political, Social or Legal Significance

Peak Yearly Results and Key Decisions

One of the most significant findings of the present research is the existence of peaks regarding

yearly averages of expressions of the most prominent ethos societal beliefs. An examination of

the extent of use of the ethos of conflict for each of the research database years has revealed

significant results for ‘peak years’, in other words, years in which the extent of use of the four

predominant clusters of ethos beliefs was significantly more widespread that all other years (see

169

discussion in Chapter 6, regarding Table 9 results). For each peak year examined, a single Court

decision of political, social or legal prominence was found to have a large number of expressions

of ethos of conflict. All such decisions, hereinafter referred to as key decisions, have dealt with

some of the most important issues regarding the conflict and have exerted legal, political and

social influence. An example is the Yeredor decision, which according to many scholars

constitutes one of the most significant decisions ever adjudicated by the Israeli Supreme Court.

Operationalized criteria are offered to evaluate the prominence of these decisions, reflecting

three areas of potential influence: the legal, political and social domains. The first two criteria are

legal: First, a key decision is mentioned extensively (at least 20 times)74 in consequent Supreme

Court decisions and second, academic publications discuss the particular decision, which is

thereby manifested by the number of Israeli law journal articles.75 These criteria were selected as

they can be easily replicated by future researchers while reflecting both the Court's own opinion

of a decision’s significance as well as the Israeli academic community views. The second

domain is political and contains two criteria for establishing its significance: first, a key decision

serves as guidance for policies and actions undertaken by executive authorities including the

Israeli military. Second, the decision leads to legislative amendments. Finally, the third domain

is social and contains two criteria: first, a key decision leads to collective action by non-

governmental organizations and second, it stirs a debate in social channels of communicating:

mass media76 but also in other outlets, such as books and articles.77 All decisions found to

manifest extensive use of expressions of societal beliefs of the ethos of the conflict for each of

the six peak years were evaluated using the abovementioned criteria.

Two further clarifications are needed regarding the criterions for establishing a Court decision as

a ‘key decision’. First, key decisions do not represent all published Court decisions included as

74 Newer decisions are unlikely to be so widely quoted, while older decisions can be expected to be quoted more than newer ones. 75 All data regarding quotations and the mention of a decision in scholarly articles in the present chapter are taken from ‘Nevo’ computerized legal database, accessed October, 20th 2013. 76 Three daily Israeli newspapers were examined: Ma’ariv, Al-Hamishmar and Davar, which were all active during the relevant years and enjoyed wide circulation. The three newspapers were researched using the computerized search available at the historical Jewish press archive: http://web.nli.org.il/sites/jpress/hebrew/pages/default.aspx. The search was conducted during august and September 2014. Given the nature of computerized search of scanned materials, it is likely some related articles were not discovered. 77 The present research did not examine the content of each reference, which entails further research beyond the scope of the present one.

170

part of the research database, which have legal, political or social significance: Many other

decisions have been included as part of the research database which manifested both legal,

political and social significance, but which did not include a large number of ethos of the conflict

expressions or did include such expressions but were not part of a peak year. The decision to

examine peak years, rather than focus on expressions of ethos of the conflict in a single decision,

reflects an attempt to research significant trends rather than singular events which do not reflect

tendencies of justices to use expressions of the ethos of conflict in their decisions in a given year.

The second clarification is that extensive use of the ethos of conflict in key decisions is not

solely a reflection of their length: Some key decisions discussed in detail in the following

paragraphs are not very long. For example, the 1978 decision, Burkan v The Minister of Finance,

contains only 3,428 words (including details such as plaintiffs' names and previous decisions

quoted yet excluding summary) while the 1973 decision Abu Hilo v. Government of Israel, is

also rather short, consisting of merely 5,802 words. The lengthiest of the six key decisions

discussed in the following paragraphs is (Duweikat v. Government of Israel, consists of a total of

11,078 words. While details of the length of each decision included in the database, especially

early ones, and consequently the average length per year, are difficult to extract for various

reasons,78 an examination generated by the qualitative data analysis program, ‘Atlas.ti’ suggests

the average length (in words) of database decisions per year is growing: for example, the average

decision for the year 1953 contains 2,834 words while in 1968, the average was 3,087 words,

gradually rising to 5,565 words in 1983 and 6108 words in 1998.

The following paragraphs discuss, in detail each of the six highest yearly peaks, examining the

use of ethos expressions for every decision for each of the six years in order to establish whether

unifying factors exists with regard to all six peak years.

The year 1979 manifests the highest standard score with regard to the use of the four

predominant ethos societal beliefs by the Court: 11.45. The significance of the research results

regarding 1979 as a peak year is supported by additional findings regarding the preceding year,

78 First, the large number of database decisions made counting words difficult. second, only a few early court decision have been converted to digital formats such as textual PDF or Word.

171

1978, which attained an accumulated standard score of 7.43 (fourth highest standard score), and

the subsequent year, 1980, which had an accumulated standard score of 3.87 (sixth highest

standard score). An additional peak period occurred in 1964 and 1965, the third and second

highest accumulated standard scores, respectively (7.93 and 8.72). Finally, another peak result

was found for 1973: the fifth highest accumulated standard score (6.04).

One possible explanation for the peak periods phenomenon, is offered by Oren’s discussion of

the role of major events in changing the ethos of the conflict: According to Oren, major or

significant events, related to the development of conflict, have distinctly influenced the ethos of

conflict in societies involved in an intractable conflict (Oren, 2005). Chapter 6, Chart 1 implies

that a connection can be established between major developments and the number of database

decisions found: For years following a major event, the number of decisions will increase: For

example, the outbreak of both the first and second Intifadas yielded an increase in the number of

published decisions related to the conflict (and are therefore included in the research database) in

the ensuing years. Yet the number of decisions does not correlate with the intensity of the use of

expressions of the ethos: As noted in Chapter 6, Chart 7, the average number of expressions,

per decision per year, of the three most predominant societal beliefs does not manifest trends

similar to the number of decisions per year.

Further study of the research findings reveals a trend seemingly unrelated to Oren’s findings,

regarding the influence of major events on the use of expressions of the ethos of the conflict: As

noted below, extensive use of the ethos, manifested by a high average result of a single year,

implies pervasive use of the ethos in particular decisions rather than in periods (lasting a year or

more). However, all peak years, except for the 8th highest score (for the year 2004) are within 17

year period: 1964 to 1980 (see Chapter 6 Table 9). According to Oren and Bar-Tal the arrival of

Egyptian President, Anwar Sa’adat, in 1977 and the 1979 Peace Treaty with Egypt are both

“major events”, both serving as a “catalyst for a new perception of the conflict and the formation

of new societal beliefs” (2006, p. 10). Hence, the demise of the peak years’ period (apart from a

brief return following the Second Intifada) could be explained by Oren’s major event theory: as

two major events in the history of the conflict have lessened the need to use of the ethos of the

conflict.

172

Another possible explanation for the 17 year period: 1964 to 1980 in which all (but one) peak

years were found is the identity of the Court judges. While this requires further study, it could be

argued that judges, who have joined the Court in the 1960s and 1970s, have been haunted by the

memory of the Holocaust, which greatly encouraged their use of the ethos of the conflict. Some

of these judges have been born in Germany and fled it before the Second World War, This claim

warrants future study, based on the data accumulated by the current research, examining the

identity of the judges who utilized the ethos of conflict in their decisions.

The following paragraphs will offer a detailed view of the six most significant results of the

research regarding yearly average use of the predominant ethos expression. In all six cases a

similar trend is revealed, pointing to the important role played by particular decisions in attaining

the high yearly average. The order of the following discussion reflects the intensity of the use of

the ethos expressions, from the highest score (1979) to the sixth highest (1980).

1979 - The ‘Beth El’ Case

Of the six database decisions for 1979, five contain a low number of ethos expressions, or none

at all,79 while only a single decision contains a large number of expressions: Ayub v. Minister of

Defense (the ‘Beth El’ case),80 one of the most influential decisions of the court regarding the

conflict. The Beth El case contains an extensive number of expressions of the ethos of conflict:

nine expressions of ethos societal beliefs regarding security, three regarding justness of our

goals, three regarding delegitimization of the opponent and three regarding own victimization, a

total of 21 ethos expressions out of 31 ethos expressions for all 1979 decisions included as part

of the research database, or 67.74 percent. The decision does not include expressions of

alternative beliefs.

Supreme Court decisions

The decision is quoted more than 40 times by later Supreme Court decisions.

79 The five remaining decisions each contain between 2 to 7 variables per decision, including each of the judges as a separate variable, the type of decisions and the outcome. 80 HCJ 606/78 PADI 33(2) 113.

173

Israeli law journal articles

The decision is discussed in 30 Israeli law journal articles.

Guidance for policies and actions undertaken by the executive authorities

The Beth El decision is one of the most important decisions in relation to the Israeli-Palestinian

conflict adjudicated by the Israeli Supreme Court: It has served as precedent with regard to some

key elements of Israel’s official position concerning international law and the Occupied

Territories, distinguishing between the legal status of the Hague Regulations and the Geneva

Convention. The decision justified the civilian settlement project in the occupied territories for

alleged security reasons (Sfard, 2003, p. 172). The importance of Beth El decision stems from

the manner in which the Court framed the nature of the Israeli settlements in the Occupied

Territories (see Kretzmer, 2002), as well as its discussion of related aspects of international law

(see, for example, Henckaerts, 1995; Farrel, 2003; Kretzmer, 2009).

The Beth El decision provided rationale and justification for the settlement project, one of the

most significant issues at the core of the conflict. As noted by Kretzmer, the Beth El decision

adopted the opinion voiced in the Rafiah Approach case (one of the key decisions found by the

present research, see discussion below) that a civilian settlement could fulfill a security need

(2002). Kretzmer details the political context of the Beth El decision, which was handed down a

few days before the signing of the final peace treaty between Israel and Egypt. This, suggests

Kretzmer, influenced the judges’ views on the temporary nature of the settlements, which, with

hindsight, “may seem preposterous” today (2002, p. 84), yet given the decision to evacuate

Yamit and Ophira as part of the peace agreement with Egypt, the West Bank settlements could

have been perceived by the Beth El justices as having a temporary nature (Kretzmer, 2002).

The Beth El decision quickly became an effective propaganda tool. As noted by Hanna Zemer,

editor-in-chief of ‘Davar’ newspaper, “the most useful document for the Prime Minister, and

following that for the government and the diplomatic consulates of Israel, to prove the legality of

the settlements (…) That decision [Beth El] has become a certification for the settlement activity,

used during debate yet also for propaganda and to legitimize a highly controversial policy”

(Zemer, 1979, p. 15).

174

Legislative amendments

The decision did not yield legislative amendments, yet it did stir a heated debate in the Knesset

as several members of Knesset left-wing parties criticized the decision's political nature while

Prime Minister Menachem Begin stressed the independent nature of Court, as well as the

irrevocability of the Court decision, which could not be appealed.81

Collective action by non-governmental organizations

The decision provided much needed legal support for the settlement project, yet the impact of the

Beth-El decision was short-lived, given the Court decision in the Elon Moreh case (see below).

Communication Profile

The decision was mentioned by eight media reports during 1979-1980, while the media

discussion of the decision continued for years to come. For example, in 1981, Danny Rubinstein

wrote about the development of the legalization efforts of the settlement project.82

1965 - The Yeredor decision

A similar trend emerges regarding the findings for the 1965 decisions; 1965 has the second

highest yearly score for average expressions of the ethos of the conflict per decision. Out of five

decisions – the total database decisions for 1965 - only a single decision was found to contain a

large number of expressions of ethos societal beliefs:83 Yeredor v Chairperson of the Central

Elections Committee for the Sixth Knesset84 (The ‘Yeredor’ case). The ‘Yeredor’ case contains

one expression of ethos societal beliefs regarding justness of our goals, seven ethos' beliefs

regarding delegitimization of the opponent and four regarding own victimization, a total of 20

ethos expressions out of 23 ethos expressions for all 1965 decisions included as part of the

research database, or 86.95 percent. The decision does include two expressions of alternative

beliefs (or ten percent of the number of ethos expressions).

81 Menachem Begin, Knesset Address, 20th March, 1979., 82 Unfortunate Legality – A New System For Taking Control Of Land In The West Bank, Davar, 20 March 1981. 83 The remaining four decisions had between 5-7 variables per decision, including each of the judges as a separate variable, the type of decisions and the outcome. 84 Election Appeal 1/65 PADI 19(3) 365.

175

Supreme Court decisions

The decision was quoted by no less than 92 decisions of the Supreme Court.

Israeli law journal articles

The decision was mentioned by more than 130 Israeli academic legal journal articles.

Guidance for policies and actions undertaken by the executive authorities

The Yeredor decision is arguably one of the most significant Supreme Court decisions. The

decision appears as part of the list of one hundred leading precedents, cited by Shachar, Gross

and Goldschmidt (2004). Furthermore, the decision is regarded as “one of the most important in

Israeli legal history” (Navot, 2007, p. 104), as well as one of the most famous decisions of the

Israeli Supreme Court (Harris, 2004). However, it was also one of the most controversial ones

(Medina, 2006). The Yeredor decision, affirmed the disqualification of El Ard by the Central

Elections Committee, a ruling which, according to scholars had no basis in existing law (Peled,

2013) and which reflected disregard for the balancing test laid down in the Kol Ha’am precedent

(Saban, 2011). The Yeredor decision, for the first time in Israel’s history, limited the right to run

for office and created a “supra-legal principle” regarding the state’s right to defend itself against

certain political parties (Shamir & Weinshall-Margel, 2005).

Legislative amendments

Justice, and later President of the Supreme Court, Yoel Sussman, writing part of Yeredor’s

majority opinion (joined by the President of the Supreme Court, Shimon Agranat), formulated

his opinion based on a definition of Israel as a "self-defending democracy". Sussman’s opinion

was echoed by the legislation of section 7A of the Basic Law: The Knesset. Section 7A,

(Amendment No. 9),85 first enacted in 1985 and revised in 2002. It stipulated that "[a] candidates

list shall not participate in elections to the Knesset, and a person shall not be a candidate for

election to the Knesset, if the goals or actions of the list or the actions of the person, expressly or

by implication, include one of the following: (1) negation of the existence of the State of Israel as

85 Passed By The Knesset On The 13th Av, 5745 (31st July, 1985) And Published In Sefer Ha-Chukkim No. 1155 Of The 20th Av, 5745 (7th August, 1985), P. 196; The Bill And An Explanatory Note Were Published In Hatza'ot Chok No. 1728 Of 5745, P. 193.

176

a Jewish and democratic state".86 Similarly, Israel’s Parties Law, Section 5, resolves that a party

will not be registered if one of its objectives or actions, explicitly or suggested, is one of the

following: The rejection of Israel's right to exist as a Jewish and democratic state. According to

Israeli scholar, Yossi Yonah, this clause greatly impinges upon Israel’s democratic nature

(1998). The decision uses security arguments to transform the manner in which Israel’s very

nature as a democratic state is defined: The Court decision according to which Israel is a “self-

defending democracy”, was later adopted by the Knesset, following an additional, much later

decision,87 in which the Court held that the Election Committee could not disqualify anti-

democratic lists and it gave a narrow interpretation to Yeredor.

Collective action by non-governmental organizations

While the Yeredor decision is often discussed in the context of Israeli constitutional law and the

right to vote, legal historian Ron Harris notes that this is an a-historical view. Instead, the

Yeredor decision (and the Jyris decision, see below) should be regarded as part of the Court’s

intensive interaction with the El-Ard movement, which resulted in no less than six Court

decisions in a period of less than five years (Harris, 2004, Lahav, 1997). Each of the three

Yeredor judges had already adjudicated a previous case involving the El-Ard movement (Harris,

2004). Both cases dealt with one of the most significant aspects of the Israeli-Palestinian

conflict: civil and political rights of Palestinian citizens of Israel.

The Court’s interaction with the El-Ard movement, a small group of Israeli Arabs who sought to

promote a pan-Arab agenda in Israel through lawful (Peled, 2013) non-violent (Medina, 2006)

means, has influenced, to some degree, relations between Jews and Arabs in Israel, and has

defined the borders of both freedom of speech and freedom of action, limiting Arab involvement

in the political sphere. The El-Ard movement ceased to exist following the Yeredor decision,

which further limited routes of action for the group (Harris, 2004).

86 The Official Translation (Up To And Including Amendment 10) Of This Basic Law Dates From 1987. This Unofficial Translation Of The Law, Incorporating All Amendments To Date (January 2003), Is Taken From The Website Of Israel’s Foreign Ministry, See: Http://Www.Mfa.Gov.Il/Mfa/Mfa-Archive/1950-1959/Pages/Basic%20law-%20the%20knesset%20-1958-%20-%20updated%20translatio.Aspx 87 Election Appeal 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, PADI 39(2) 225.

177

Communication Profile

The Yeredor decision was mentioned by six newspaper articles in 1965. Over the years the

decision, as well as the phrase ‘self-defending democracy’, became a staples of Israeli

constitutional jargon, used frequently by the media: According to a Ha’aretz computerized

archive search, a total of 150 articles (the maximum possible) used this term between August

1994 and September 2014.

1964- The Jyris Case

The results of the 1964 database decisions, the third highest average score for a single year

regarding average expressions of ethos societal beliefs per decision, reveal a similar trend: Out of

four decisions, only one has a significant number of expressions of ethos societal beliefs:88 Jyris

v. Official in Charge of the Haifa District89 (the ‘Jyris’ case) contains one ethos of conflict

expression regarding security, another regarding justness of our goals, nine regarding

delegitimization of the opponent, five regarding own victimization, two regarding unity and two

for positive collective self-image. The Jyris case deals with El Ard’s struggles against an Israeli

official who refused to register the movement as a corporation, fearing it would attempt to

undermine the Israeli regime, a total of 12 ethos expressions out of 14 ethos expressions for all

1965 decisions included as part of the research database, or 85.71 percent. The decision does not

include expressions of alternative beliefs.

Supreme Court decisions

The Jyris case is quoted by 21 Supreme Court decisions.

Israeli law journal articles

The decision was mentioned by 36 Israeli legal journal articles.

Guidance for policies and actions undertaken by the executive authorities

Given Harris' argument regarding the role Jyris played leading to the Yeredor decision, the

political upheaval created by Yeredor may not have been possible without the Jyris decision.

88 The remaining three decisions had between 5-8 variables per decision, including each of the judges as a separate variable, the type of decisions and the outcome. 89 HCJ 253/64, PADI 18(4) 673.

178

Legislative amendments

The decision did not yield legislative amendments.

Collective action by non-governmental organizations

While the Jyris decision has attained less publicity than the Yeredor decision, Harris notes that

the “Jyris decision, not the Yeredor decision, is the turning point in the Supreme Court attitude to

the El Ard movement. In Yeredor the judges follow the same line, relying significantly on the

Jyris case regarding the goals of the movement” (2004, p. 147; see also 2001).

Communication Profile

Due to various alternative spellings of the surname ‘Jyris’ in Hebrew (ג'ריס, ג'יריס, ג'ירייס) a

computerized search examined the number of articles mentioning the term “El Ard”: 68 articles

were found, many of them of dealing with the Court case and with the Jyris decision.

Additionally, six article regarding Sabri Jyris (the petitioner in the Jyris case) and El Ard were

found by Ha’aretz computerized archive search between August 1994 and September 2014.

1978 - The ‘Burkan’ Case

The fourth highest yearly score, 1978, offers a similar, if somewhat less distinct, trend: Of the six

decisions, two utilize ethos expressions. Of the two decisions, Langer v. The Committee

Authorizing Defense Lawyers in Military Courts,90 contains five ethos expressions, while the

other decision, Burkan v The Minister of Finance,91 (the ‘Burkan’ case) contains two expressions

of security as an ethos' societal belief, two expressions regarding justness of our goals, five

regarding the delegitimization of the opponent and three regarding own victimization, a total of

12 ethos expressions out of 21 ethos expressions for all 1978 decisions included as part of the

research database, or 57.14 percent. The decision does not include expressions of alternative

beliefs.

90 HCJ 221/77, PADI 32(1) 182. 91 HCJ 114/78, PADI 32(2) 800.

179

Supreme Court decisions

Burkan was quoted by 24 decisions of the Supreme Court, including the extremely significant

decision of Ka'adan v. Israel Land Administration.92

Israeli law journal articles

The decision was discussed by 34 articles published in Israeli legal journals.

Guidance for policies and actions undertaken by the executive authorities

The Burkan Court failed to negotiate and offer solutions for some of the most problematic

aspects of the Israeli-Palestinian conflict: The Court accepted the position of the state regarding

the residential segregation that has been “customary in Jerusalem since the 11th century” (Reiter

and Lehrs, 2010, p. 57). Discussing Burkan, Yiftachel notes this decision (as well as others)

demonstrated the limited capacities of the judiciary faced with an “ethno-geographic reality

which is created by political and violent forces stronger than the law” (2005, p. 6)

Burkan is one of the most important Court decisions regarding the conflict; however, it is not

only a legal precedent, nor is it solely an example of one of the manners by which Palestinians

were stripped of their land rights by Israel’s legal and bureaucratic systems; Rather, Burkan is a

“milestone in Israeli adjudication” (Stendel, 1996, p. 199), while Justice Cohn's opinion has

provided “the basis of Israel’s policy in the Old City of Jerusalem”, a policy fully adopted later

on by Jerusalem mayor, Teddy Kollek (Shragai, 1995, p. 190).

Legislative amendments

The decision has not yielded legislative amendments.

Collective action by non-governmental organizations

The Court rejected Muhammad Said Burkan’s petition. Burkan was a Palestinian resident of East

Jerusalem, who had lived in a rented apartment in the Jewish Quarter in the Old City of

Jerusalem since 1947. In 1973, the petitioner built a larger home for his family in Beit Hanina,

yet still kept various items in his home inside the Old City walls. In the framework of the Jewish

92 HCJ 6698/95, PADI 54(1) 258.

180

Quarter restoration project, the house was seized by the Company for the Reconstruction and

Development Jewish Quarter. Burkan requested to lease an apartment at the Jewish Quarter

restoration project but was rejected as he failed to meet the criteria (army service, or Israeli and

Jewish resident who recently made ‘Aliya’ to Israel). The presiding judges, Bechor, Shamgar and

Haim Cohn, who dismissed the petition, ruled that the restoration of the Jewish Quarter was

meant to restore it specifically as a Jewish quarter. Israeli jurist Avigdor Feldman notes that the

Burkan decision is, on the one hand, a “very good fable” (p. 718), yet, on the other hand, is an

example of the court's willingness to create a hegemonic history of the Jews, in stark opposition

to the manner in which the Court discusses Israeli Arabs, who seemingly lack a historical

dimension when their matters appear before the court (Feldman, 1995). An analysis of Burkan in

comparison to the later Ka'adan decision is offered by Israeli jurist Hassan Jabareen (2001), who

compares the lack of historical account in Ka'adan petition, which is a response to the harsh

words and negative opinion of the Burkan judges to the inherently historical-led petition

submitted by Burkan. While Ka’adan can be perceived as a success of the individualistic

approach to the struggle, the Burkan decision is an example of the manner in which a “national

identity based approach stressing the collective aspects of the struggle would have likely failed”

(Ben-Shemesh, 2010, p. 197).

Communication Profile

Twelve newspapers articles written between 1976 and 1983 discuss the Burkan case in general

and the Court decision in particular. One of the most interesting articles discusses a letter of

apology issued by Justice Haim Cohn to the Israeli Television following a critical mention of a

television report on the Burkan eviction which appeared in the Burkan Decision.93 Additionally,

the case was mentioned in later media articles, including a retrospective interview with petitioner

Burkan, published by Ha’aretz in 200994 and an opinion editorial on the Goldstone Commission

written by legal scholar Avigdor Feldman on the same year.95

93 Supreme Justice Haim Cohn Apologizes For A Wording Of The Burkan Decision, Davar, 19 July, 1978. 94Eldar, A. (2009). Burkan’s Vision Of A Unified Jerusalem, Ha’aretz, Http://Www.Haaretz.Co.Il/News/Politics/1.1272774 95 Feldman, A. (2009). The Chickens The IDF Run Over In Gaza As A Fable, Maariv, Http://Www.Nrg.Co.Il/Online/1/ART1/948/912.Html

181

1973 - The ‘Rafiah Approach’ Case

The fifth highest yearly average score, 1973, manifested a similar trend to the other four highest

average scores discussed above: of the three decisions included as part of the research database,

two contain but five research variables (including judges names etc.) each, while the third, Abu

Hilo v. Government of Israel,96 (better known as the ‘Rafiah Approach’ case) deals with the

eviction of Bedouins living in the Rafiah Approach area, contains eight expressions of security

as an ethos' societal belief, one expressions of ethos' societal beliefs regarding justness of our

goals, and one regarding the delegitimization of the opponent, a total of 10 ethos expressions out

of 10 ethos expressions for all 1973 decisions included as part of the research database, or 100

percent. The decision does not include expressions of alternative beliefs.

Supreme Court decisions

The significance of the Rafiah Approach decision is further demonstrated by the high number

(43) of Supreme Court decisions quoting it.

Israeli law journal articles

The decision was mentioned by 45 Israeli law journal articles.

Guidance for policies and actions undertaken by the executive authorities

According to Kretzmer, the Rafiah Approach decision is one of the first cases in which the Court

was asked to review the validity of an action by the military commander and was the first

decision of the Court which questioned the judicial review of the Israeli military commander of

the Occupied Territories. It is also a highly important case for its discussion of the applicability

of public international law, specifically the Hague and Geneva Conventions, with regard to the

actions of the military commander in the Occupied Territories (Kretzmer, 2002; see also

Dinstein, 1974).

Similar to the Beth El decisions, the ‘Rafiah Approach’ decision has greatly impacted the way

the Israeli military controls the Occupied Territories: According to Kretzmer, it is the first

decision in which the Court expressly discussed the question of judicial review over military

96 HCJ 302/72, PADI 27(2) 169.

182

legislation in the Occupied Territories (2002). Moreover, Justice Landau refers to “the areas of

military government” rather than to “the occupied territories” in the ‘Rafiah Approach’ decision,

although Landau does not explain “what international law applies in 'areas of military

government' that are not regarded as occupied” (Kretzmer, 2002, pp. 35-6).

The refusal to use the term ‘Occupied Territories’ by Justice Landau in the Rafiah Approach

decision, according to Kretzmer, helped to establish a trend which had significant political and

social implications beyond the legal ones: By refusing to use the term ‘occupation’ the Court

avoids a likely clash with ethos of conflict societal beliefs regarding justness of our own goals,

societal beliefs regarding positive collective self-image as well as societal beliefs of own

victimization. Research reveals the term ‘occupation’ carries negative connotations, hinting at an

immanent wrongdoing, injustice and immorality (Rosler, Bar-Tal, Sharvit, Halperin, & Raviv,

2009). To conclude, by establishing alternative terminology to the term ‘occupation’, the Court

in the ‘Rafiah Approach’ decision cemented parts of the ethos of the conflict by providing a

narrative devoid of moral imperfections and troubling issues. Justice Landau's alternative

narrative has played a role in legitimizing political views of those right-wing parties which

regarded the occupied territories as ‘held’ and even 'liberated' territories rather than as being

‘occupied’.

While the Court decision did not promote significant political action, the issue of the evicted

Bedouin continued to be dealt with by the Israeli authorities who offered limited compensation to

some of these Bedouin (Lifshitz, 2002).

The most significant political legacy of the decision was Justice Landau’s view, stressing the

need to limit the scope of intervention of the court in the actions of military authorities that relate

to security matters (p. 177). Such a view liberated the Israeli military and the Israeli government,

subjecting their settlement related actions to minimal judicial review – even more so given that

the Court was willing to create a distinction between the settlement intentions of the government

and the executive decision relating to the eviction of Bedouin from their land (Kretzmer, 2002).

183

An additional political and legal consequence of the Rafiah Approach issue in general was a

recent Court decision, given as late as 2010, regarding a petition submitted by the Association

for Civil Rights in Israel (‘ACRI’) against the Israeli Military archive for refusing to provide an

independent research study with materials regarding the eviction.97

Legislative amendments

The decision has not yield legislative amendments. Interestingly, the area of Rafiah Approach

was the scene of another eviction, this time, of Israeli settlers, as part of the peace agreement

with Egypt. In a Knesset discussion entitled “Events in Rafiah Approach” dealing with the

consequence of the peace agreement in this region, Labour Party Member of Knesset Arie

Nehemkin, argued that he was one of the entrepreneurs and planners of the settlement in Sinai, in

the Rafiah Approach region, which had previously been a “desolate dunes area [which was

turned] with the assistance of the Israel nation and its sons into a flourishing and thriving

agricultural area; a symbol of security and the strength of peace”.98 Such a misleading statement

may have been less likely given a different legal outcome of the Rafiah Approach case or given a

similar result using different argumentation, less expressive of the ethos of conflict.

Collective action by non-governmental organizations

The petition was a result of a joint effort by Bedouin sheikhs who had lost their land, and a

lawyer associated with the Mapam party (Kretzmer, 2002). Oded Lifshitz, who provides a

historical account of struggle against the uprooting, refers to the Court decision as damaging the

legitimacy of the struggle, yet the struggle did continue following the decision (Lifshitz, 2002).

The Court decision as well as the actual uprooting, led to a significant tension in the Kibbutz

Artzi movement (Zertal, 1975).

Communication Profile

According to a list prepared by the Yad Tabenkin Archives, more than 200 newspaper articles

have discussed settlements in the Gaza Strip and Rafiah Approach during the 1971-1977 period,

97 HCJ 2467/05 Gorenberg v. The Director of the IDF's and the Ministry of Defense's Archive (Not Yet Published). Http://Elyon1.Court.Gov.Il/Files/05/670/024/N13/05024670.N13.Pdf 98 Discussion 49 Of The 10th Knesset, 25th January, 1982.,

184

dozens of which discuss the Court case.99 Lifshitz mentions a series of articles written by Amnon

Rubinstein and published in Ha’aretz, denouncing the uprooting, which provided moral support

for the activists who struggled against it (2002).100

1980 – The ‘Elon Moreh’ Case

The final yearly result which was examined with regard to the extent of use of ethos expressions,

was 1980, the sixth highest yearly average; While nine database decisions out of ten contain

between nine and five variables examined by the current research, including expressions of the

ethos, Duweikat v. Government of Israel (the ‘Elon Moreh’ case)101 contains three regarding

security, three expressions of ethos societal beliefs regarding justness of our goals, two regarding

delegitimization of the opponent, two for positive collective self-image and two regarding

patriotism, a total of 12 ethos expressions out of 27 ethos expressions for all 1980 decisions

included as part of the research database, or 44.4 percent. The decision, a rare win for a

Palestinian petitioner, includes seven expressions of alternative beliefs: four regarding justness of

our own goals, two regarding security, and one regarding positive collective self-image,

reflecting its rare legal results – a Palestinian win – which has been linked to a marked increase

in use of alternative beliefs (see Chapter 6, Table 11).

Supreme Court decisions

The decision was quoted by no less than 108 Israeli Supreme Court decisions.

Israeli law journal articles

The decision was mentioned by 104 Israeli law journal articles, a testimony to its legal

significance.

Guidance for policies and actions undertaken by the executive authorities

While the Elon Moreh decision is considered a ‘landmark case’ (Shamir, 1990; Jacques, 2012),

given its ruling, both the Elon Moreh and the Beth El decisions have shaped the way Israel

99 Search Results for “Settlements In The Gaza Strip And Rafiah Approach 1971-1977”. 100 Rubinstein mentioned Rafiah Approach as a point of major point of contention between him and Ariel Sharon, years later, following Sharon’s illness in 2006: A Different Sharon, Ma’ariv, 13th January, 2006. 101 HCJ 390/79, PADI 34(1) 1.

185

controls the Palestinian Occupied Territories and are expressions of hidden (and public) political

and social agendas. The importance of the Elon Moreh decision stems from the Court ruling that

land, privately owned by Palestinians in the Occupied Territories can only be confiscated for

purely military purposes, not for civilian settlement of Israelis, thereby providing a rare example

of a decision supportive of a Palestinian cause against Israeli interests (Shamir, 1988).

Kretzmer’s detailed discussion of the Elon Moreh case sheds light on the political circumstances

which the Court had to address, as records reveal that Elon Moreh was established under

pressure from the militant Gush Emunim settlers’ movement rather than by military authorities

(2002). Kretzmer notes that “[t]he facts in the Elon Moreh case were not unique” (2002, p. 88)

suggesting that the Beth El decision was “handed down just before the signing of the peace treaty

with Egypt, while the Elon Moreh decision was handed down seven months after the treaty was

signed. The passage of time may have made it easier for the Court to reach a decision that would

have been problematic whilst negotiations were going on for the removal of ‘permanent’

settlements.” (2002, p. 88). While former Israeli Supreme Court Chief Justice Barak cited the

Elon Moreh decision as an indicator of judicial supremacy (1989), following the Elon Moreh

decision a political backlash occurred, culminating in an initiative to “limit the Court’s

jurisdiction in cases relating to land use on the West Bank” (Kretzmer, 2002, p. 218; Lustick,

1981; Gazit, 2003). The Court’s decision about Elon Moreh threatened the coalition stability

(Yishai, 1987).

The government, having received 30 days to execute the Elon Moreh decision met seven days

after the decision102 to discuss its ramifications. After a lengthy debate the government decided

“to register the Prime Minister’s announcement that following the Court decision regarding Elon

Moreh, efforts are being made to locate land to settle in the Shomron for the Elon Moreh group”

(1979, p. 34). An even more extensive debate, over more than 130 protocol pages, led to a

decision not only to relocate Elon Moreh but also to discuss the “settlement policy” of the

government for "Tasham", the Hebrew calendar year (1979, p. 139).103

102 Meeting 7/Tasham Of The Israeli Government, 29.10.1979, Section 89, 11-34 Http://Www.Archives.Gov.Il/NR/Rdonlyres/B29DE1AF-8547-49A2-A21C-C5810D9E308C/0/Elonmore1.Pdf 103 Meeting 8/Tasham Of The Israeli Government, 1.11.1979, Section 125, 7-139 Http://Www.Archives.Gov.Il/NR/Rdonlyres/D029F93A-7AF5-47F8-9BF9-7939F06B35C2/0/Elonmore2.Pdf

186

The response finally adopted by the government was to declare land in the Occupied Territories

as state land: an alternative mechanism for pursuing its settlement policy (Kretzmer, 2002). The

results of this revision greatly impacted the nature of the conflict: in the two years following the

Elon Moreh decision more land was declared “state owned” than in the previous twelve years

(Yishai, 1987; Alexandrowicz, 2011).

Legislative amendments

The Elon Moreh decision has not generated substantial legislative amendments.

Collective action by non-governmental organizations

The decision had a significant impact on the settler leaders who, after much deliberation, reacted

by declaring a hunger strike. Gush Emunim also published a lengthy paper in response to the

Court decision, noting that the Elon Moreh decision caused the ground to be “stricken out from

under any Jewish settlement project in the liberated territories” (Zertal & Eldar, 2007, p. 362-

363).

Communication Profile

The Elon Moreh affair, including the Court decision, yielded 288 media reports in 1979 and 183

media reports in 1980, many of which discuss the Court decision or its aftermath. The decision

was the topic of more recent newspaper articles, including, for example, Moshe Gorali’s

Ha’aretz article on the ramifications of the establishment of the International Criminal Court for

Israel, mentioning the Elon Moreh Court decision as a ‘turning point’ (Gorali, 2003) in the

context of the conflict. Another more recent article by historian Tom Segev examines the role

and views of Yitzhak Zamir, former justice of the Supreme Court and the legal advisor to the

Israeli Government during the Elon Moreh decision, regarding government actions following the

Court decisions (Segev, 2012). The decision has also been discussed by international scholars

(see, for example, Lustick, 1981).

As noted above, each of the six peak years reflects an extensive use of ethos of conflict

expressions in a single court decision of unique legal, political or social importance. All six key

187

decisions deal with some of the most important issues related to the conflict ever brought before

the Court: from decisions which provided legal justifications for civilian settlements in the

Occupied Territories to decisions in support of state attempts to severely curtail civil, political

and economic rights of individuals and groups of Israeli Arabs who sought to promote an

alternative narrative for Israel.

Consequently, each of these Court decisions manifested significant political, social and legal

importance: Significant findings were observed with regard to all key decisions regarding all six

criteria except for the second political criterion - legislative amendments – which was found

relevant solely in the Yeredor decision and eventually, following an additional decision by the

Court,104 led to significant constitutional change. These characteristics link all six decisions,

thereby establishing a relationship between legal and socio-psychological aspects of some of the

most prominent Supreme Court decisions related to the conflict: In many cases, a heightened use

of ethos of conflict expressions predicted a decision’s political, social or legal significance.

The research findings regarding the relations between the legal, political or social significance of

a Court decision and the intensity of the use of the ethos of conflict in the very same decision

imply that a rather small number of decisions employed a large number of ethos expressions.

One can assume that the Court does not need to include a significant number of expressions of

the ethos of conflict in each published decision related to the conflict. Rather, the Court uses

expressions of the ethos of the conflict to a great extent in decisions which are likely to be

closely followed by the public, reflecting social views on the conflict which are manifested by

the ethos of conflict. While no connection can be proven, this trend corresponds with the results

of studies conducted separately and independent of each other by Salzberger (2003) and

Meydani ( 2011), which have observed that only a small fraction of the Court’s high-profile

decisions receive public attention.

Decisions by an Extended Panel or Containing a Dissenting Opinion

104 EA 2/84 Neiman v. Chairman of the Elections Committee, PADI 39(2) 225.

188

The positive connection between legal, political and social significance and the extent of the use

of the ethos of the conflict which was found for all peak years examined, is further supported by

an examination of the extent of ethos expressions in two types of decisions: decisions taken by

an extended panel and decision containing a dissenting opinion by one justice or more.

According to the research results (see Chapter 6, Table 12), Court decisions by an extended

panel or containing a dissenting opinion utilize more than twice the average number of

expressions of predominant ethos beliefs as compared to the total database population. Decisions

which include either a dissenting opinion or an extended panel are few and far between: Of a

total of 757 database decisions, only 59 contain a dissenting opinion and 30 database decisions

were given by an extended panel. While the inclusion of a dissenting opinion, as part of a Court

decision, points to the Court’s inability to reach an agreed upon and harmonious decision, an

extended panel can be formed due to a multitude of reasons, therefore it does not necessarily

signify discord or clash between different judicial opinions. An extended panel is formed

following a decision to extend the panel granted by the President of the Supreme Court or by the

presiding justices.105 A decision to extend the panel may reflect the court’s recognition of the

significance of the issue discussed by the court. As noted recently by the former Court Chief

Justice, Dorit Beinisch, with regard to the criminal appeal of former Israeli President, Moshe

Katsav, a decision to extend the panel is taken in cases in which principal or novel questions of

legal or constitutional nature are demanded by the court to serve as binding precedent.106

In the context of the present study results, both categories of decisions represent cases in which

judges are likely to express different or even opposing views. Heightened use of the ethos of

conflict in the context of these decisions can be therefore explained, at least partially, as an

attempt to minimize critique of the Court regarding decisions in which the Court does not speak

in a uniform voice. The existence of more than a single perception of issues related to the

conflict is at odds with the ethos of the conflict and especially with Collective memory which

aims to provide society members with “a black and white picture” enabling a “parsimonious,

fast, unequivocal, and simple understanding of the “history” of the conflict” (Bar-Tal, 2010, p.

11). By providing different and even contrasting accounts of significant events in the history of

105 Decisions To Extend The Panel Are Made According To The Courts Law [Consolidated Version], 5744-1984, Sections 26(1) Or 26(2). 106 CA 3372/11 Katsav V. State Of Israel (Not Yet Published).

189

the conflict, the Court unintentionally negates existing information regarding the conflict,

clashing with beliefs and thoughts regarding the conflicts formed by collective memory and the

ethos of conflict.

Prevalent clusters of ethos beliefs – roles and functions

An examination of the research findings reveals two patterns with regard to the use of the ethos

of conflict by the Court. First, four clusters of ethos societal beliefs were found to be

predominant in database decisions: delegitimization of the opponent, security, own victimization

and justness of own goals, and second, expressions of predominant ethos societal beliefs were

found to predict the appearance of expressions of other predominant ethos societal beliefs.

As noted above, the four most predominant clusters of ethos societal beliefs: delegitimization of

the opponent, security, own victimization and justness of own goals, were observed in previous

research to be the most significant clusters of ethos societal beliefs in the context of Israeli

Jewish society. The following paragraphs will briefly discuss the relevance of each of the four

most predominant clusters of ethos societal beliefs to the Court decisions regarding the conflict.

The next section will examine collective aspects of predominant clusters of ethos of the conflict

societal beliefs.

Delegitimization of the opponent

According to the present research findings, delegitimization of the opponent is the most

pervasive cluster of ethos societal beliefs (36.1% of all ethos expressions) in the context of the

Court published decisions regarding the conflict. Kelman has discussed de-legitimization of the

opponent as a major aspect of the Israeli-Palestinian conflict: In order for a society to maintain

its legitimacy it must delegitimize the other side to the conflict (1999). Mutual delegitimization

has been one of the bitter manifestations of the long years of conflict between the Israeli Jews

and the Arabs (Bar-Tal, 1988; Oren & Bar-Tal, 2007). From early on, the encounter between

Jews, mostly coming from Europe, and the Arabs who were living in Palestine fostered negative

stereotyping (Lustick, 1982). Studies conducted during the 1950s to 1970s, including research of

190

Israeli schoolbooks, revealed delegitimization of the opponent, which has been both pervasive

and institutionalized, dominating the psychological repertoire of members of Israeli society (Bar-

Tal, 2007; Bar-Tal & Teichman, 2005). As noted by Bar-Tal, “entire generations of members of

the Israeli society had been educated on the delegitimization of Arabs in general and Palestinians

in particular” (2007, p. 239).

The Israeli Supreme Court has dealt with some of the most significant claims brought by

Palestinians with regard to the conflict. Hence, the prevalence of the cluster of delegitimization

ethos societal beliefs is testimony to the Court’s attempt to delegitimize the Palestinian cause at

the heart of the legal decision: The relatively frequent use of delegitimization by the Court,

arguably including negatively portraying Palestinian plaintiffs as well as their legal claims, even

when this appears as a general remark rather than a reference aimed directly at the matter at hand

or at an individual Palestinian who is involved in the legal procedure.

Security

According to the present research findings, security is the second most pervasive cluster of ethos

societal beliefs (26.3% of all ethos expressions) in the context of the Court published decisions

regarding the conflict. Originally underlying Zionist aspirations to return to Israel and to

establish a Jewish state, security has since become a central value and an expressed need,

acquiring the status of a cultural master-symbol in Israeli Jewish societal ethos (Horowitz, 1984;

Liebman & Don Yehiya, 1983). Consequently, Israeli society has become a ‘nation in arms’ or a

‘nation in uniform’, living under circumstances which have been termed ‘dormant war’

(Horowitz, 1993). The dominance of ethos beliefs regarding security is evident as security has

turned into a rubber stamp for laws, policies and actions. Societal beliefs regarding security have

spread beyond military and political spheres into economic, legal, social, educational, and even

cultural domains (Bar-Tal, Jacobson, & Klieman, 1998; Kimmerling, 1993; Perlmutter, 1969).

The pervasive use of ethos of the conflict beliefs regarding security should not come as a surprise

to scholars familiar with the Court decisions relating to the conflict: Security arguments hold a

magical allure: the Court has accepted without hesitation arguments using security as a

191

justification, raised by representatives of the state. The findings of the present research support

Barzilai's claims that the Court has not challenged any major tenet of the Israeli political regime;

it has not altered any fundamentals of the Jewish character of the state, nor has it questioned the

military regime in the territories or the dominance of security considerations in Israel's public life

(Barzilai, 1999). Even in its most liberal moments, the Court has continued to emphasize the

centrality of security considerations in its judicial decisions (Barzilai, 1998).

Own victimization

According to the present research findings, own victimization is the third most pervasive cluster

of ethos societal beliefs (14.0% of all ethos expressions) in the context of the Court published

decisions regarding the conflict. Israeli Jews insist they are the sole victims in the context of the

conflict with the Palestinians, victims of Arab aggression (Bar Tal, 2007). These beliefs accord

with what conflict resolution scholars have considered as “Jewish tradition of viewing Jews as

victims of a hostile world”, which emerged early on in Jewish history (Bar-Tal & Teichman,

2005, p. 120; Bar-Tal & Antebi, 1992; Hareven, 1983; Lieberman, 1978; Stein, 1978). Nadler

and Shnabel (2006) examined the frequent use of victim terminology among both Palestinians

and Israelis. They argue that the "victimhood competition" between those two rivals is a fight

over moral social identity. Societal beliefs regarding Israeli Jewish society as an ultimate victim

has become a central part of the Israeli Jewish societal ethos and identity and has had a major

effect on Israeli Jews' worldview and in particular their responses to events related to the Israeli-

Arab conflict (Bar-Tal, 2007).

While the pervasiveness of "own victimization" is substantially lower than that of

delegitimization of the opponent or security clusters of societal beliefs, it is more frequent than

five of the eight clusters of societal beliefs, which is likely a reflection of the deep rooted belief

in victimhood. Moreover, as both Israeli and Palestinian societies claim to be the ultimate

victims of the conflict, a trait of prolonged and violent conflicts (Oren, Bar-Tal, & David, 2004;

Bar-Tal & Salomon, 2006; Nadler & Saguy, 2003; Noor, Brown, & Prentice, 2008a, 2008b;

Staub, 2003, 2006; Noor, Shnabel, Halabi & Nadler, 2012), the Court’s use of ethos societal

beliefs fortifies the Israeli ethos of the conflict, consequently stripping Palestinians of their

192

victimhood claims, given the binary nature of the ethos of the conflict with regard to beliefs

regarding victimhood.

Palestinian legal claims may also be deemed immoral or at least unjustified, given additional

claims which depict their own suffering, portraying them as victims and therefore denying the

Israeli ethos of the conflict societal beliefs regarding the ultimate and singular nature of their

own victimhood. For example, the use of victimhood claims by Palestinian plaintiffs can explain

the strongly worded Burkan decision, denouncing petitioner Muhammad Said Burkan for lying

to the Court: “But the petitioner’s lies regarding his place of residence disqualify him from

petitioning this court: He tried to give the impression that the respondent had evicted himself, his

wife and her small children, by the brutal force of the execution office” (Justice Cohn's opinion,

Section 4). It can be argued that the Court’s rage stems not only from what they suspect is a false

claim but from the nature of the claim – a claim which refutes a core aspect of the Israeli Jewish

ethos of conflict, the singular nature of its victimhood.107

Justness of Own Goals

According to the present research findings, justness of our own goals is the fourth most pervasive

cluster of ethos societal beliefs (9.4% of all ethos expressions) in the context of the Court

published decisions regarding the conflict. Justness of our own goals contains reasons and

justifications for the conflictive in-group’s goals. At the same time, it discredits the goals of the

rival. Israel’s dominant metanarrative offers historical, theological, national, political, societal,

and cultural justifications for exclusive Jewish rights to the land (Shimoni, 1997). According to

Oren, Nets-Zehngut and Bar-Tal justness of our own goals, which can be found in the Israeli

1948 Declaration of Independence, reappears in leaders’ speeches, including recent ones (Oren,

Nets-Zehngut & Bar-Tal, in press).

The Court’s use of societal beliefs regarding the justness of Jewish Israeli goals echoes the

manner in which these beliefs have been utilized by Israeli Jewish society throughout the Israeli-

107 A possible explanation of this judicial approach can be found in passive aggressive. Cohn was embarrassed by the petition and was faced with the ultimate clash between liberal values and the Jewish state. His reaction was his inelegant way of coping with this embarrassment: attack the petitioner.

193

Palestinian conflict, to refute Palestinian claims (Oren, Bar-Tal, & David, 2004). The need to

refute Palestinian claims of justness of their own goals reflects the fragile nature of the beliefs in

the justness of our own goals: even a minor alternative claim in this regard can lead to a

“weakened resolve with regard to the willingness to mobilize, struggle and sacrifice” (Bar-Tal,

2013, p. 177).

Interrelations between clusters of ethos beliefs – roles and functions

As noted in Chapter 6 (Chart 2 and related discussion) expressions of predominant ethos societal

beliefs in database decisions were found to predict the appearance of expressions of other

predominant ethos societal belief. The present research findings suggest that the presence of an

expression of a predominant ethos societal belief increases the likelihood of an additional

expression, of a different cluster of predominant ethos societal belief, for the same Court

decision.

Previous research regarding ethos of conflict in societies involved in intractable conflicts has

rarely dealt with this aspect, i.e., the presence of expressions of ethos societal beliefs predicting

the presence of an additional expression of ethos societal beliefs of a different cluster. However,

according to Bar-Tal (2003), “When physical violence continues for a long time, it contributes

significantly to the formation, dissemination and maintenance of four themes of societal beliefs

(…), beliefs about the conflict;108 beliefs regarding delegitimacy of the opponent; beliefs

regarding victimization and beliefs regarding patriotism. (...) these four beliefs are apparently

formed in direct response to the human losses resulting from physical violence.” (2003, p. 85).

While beliefs regarding patriotism were not observed in the present research to be part of the

predominant clusters of societal beliefs, both Bar-Tal's remarks and the present research findings

shed light on the nature of the ethos the conflict: in both cases the ethos is experienced as a

cohesive entity.

The predominance of the four clusters found by the present research leads to the following

argument regarding the linkage between the four which can examined by future research:

108 Later the term was renamed by Bar-Tal ‘Collective Memory’ O.S.L.

194

societal beliefs regarding the delegitimization of the opponent, the most common cluster of

societal beliefs, is associated with two of the three additional predominant clusters – as noted

above and in Chapter 2, justness of own goals entails the delegitimization of the opponent. In a

similar manner, societal beliefs regarding our own victimization are firmly associated with the

delegitimization of the opponent’s claim of its own victimhood, as noted above with regard to

the Burkan decision.

The link between security and the need to delegitimize the opponent is the following: Both

delegitimization of the opponent and societal security beliefs are expressions of an external

threat: The delegitimized group has committed, commits and intends to commit violent acts

which are perceived as immoral and unjust – these constitute a threat to the ingroup. The threat is

also expressed by the use of societal beliefs regarding security—they not only note, enumerate

and describe threats and their types but also specify ways to cope with them, reflecting the need

to provide justification for violent acts.

Security expressions used in conjunction with delegitimization claims regarding the opponent

shed light on the connection between the two clusters of societal beliefs of the ethos of conflict:

judges use both delegitimization of the Palestinians and security arguments as reactions to

Palestinian claims. Security beliefs and delegitimization of the opponent are therefore two

manifestations of the need to ward off what may be perceived (by the international community or

a few members of the in-group) as legitimate claims.

It could therefore be argued that separate societal beliefs are not separate socio-psychological

phenomena, sharing little or no common basis (see Chapter 2) but rather expressions of a single

socio-psychological phenomenon—in fact, a type of conservative ideology (Bar-Tal, Sharvit,

Halperin, & Zafran, 2012). A number of other studies confirmed this finding (Gopher, 2006). To

quote Wilfred Bion's classic psychoanalytic observation, “what appeared to be two entirely

different mountains (…) were, in fact, the same mountain; one from the southern vertex and the

other from the northern vertex” (1974, p. 96 see at Shoshani Rosenbaum, 2009, p. 16). This view

of the ethos as a singular, multifaceted, psychological phenomenon has significant implications

for the study of the ethos as well as for its meaning – it can also strengthen the perception of the

195

ethos as part of an inclusive worldview which is manifested not only by the ethos but also by

collective emotional orientations and collective memory.

The significance of these findings stems from the unique nature of Court decisions which focus

on a legal issue or several issues. Therefore, it can be assumed that ethos expressions would

reflect legal issues; for example, a Court decision stemming from a petition against the Israeli

military will manifest ethos societal beliefs regarding security. Yet in reality the Court has

utilized combinations of expressions of ethos societal beliefs, rather than expressing individual

ethos beliefs, according to the legal issues discussed in each decision, pointing to the ethos

significance.

Consistency of Ethos of Conflict

The prominence of the ethos with regard to the researched decisions was also observed by

examining the use of the ethos throughout the researched period: the findings demonstrate a

consistent level of ethos expressions throughout the researched period, from 1948 until 2006.

While the research results (see Chapter 6, Table 1) suggest the number of published Court

decisions regarding the conflict has grown dramatically during the researched years, according to

the present research results (see Chapter 6, Tables 5-8 and Charts 8-11) nearly ninety percent of

all yearly averages are within less than one standard deviation of the average: Of a total of 59

researched years, 54 (91.5 percent) are between one standard deviation of the average. Only five

results have a standard score higher than a single standard deviation, while none is lower than a

single standard deviation. In other words, the extent of the Court’s use of each of the four main

ethos themes is consistent and not influenced by the number of decisions published per year.

The following section will examine the possible roles and functions undertaken by the ethos of

the conflict regarding the Court’s published decisions related to the conflict.

The Ethos as Values

196

As noted in chapter 3, Mautner found that in the 1950s the Court had relied primarily on formal

legal arguments, while in the 1980s the Court’s decision has used values much more openly, as

formalist reasoning gave way to a rise in value-led reasoning during the 1980s. Given this

observation, the use of ethos of conflict expressions should have grown considerably during the

1980s and 1990s. Yet the distinct pattern revealed by the findings of the present research does

not support Mautner’s conclusions, given that the seven highest results of accumulated standard

score for the four most predominant ethos societal beliefs were found between 1964 and 1980

(see Chapter 6, Table 9) and the highest ten results are still in a rather similar time frame, except

for an additional single result, for the year 2004.

Roles and Functions of the Ethos of the Conflict

Legitimizing State Actions

The Israeli Supreme Court has played a significant role in legitimizing the actions of the state,

specifically in the context of the conflict with the Palestinians (see Chapter 3). As noted by

Kretzmer, “By clothing acts of military authorities in a cloak of legality, the Court justifies and

rationalizes” Israeli government actions in the Territories” (Kretzmer, 2002, p. 2). The focus of

the present research offers a view of utilizing expressions of the ethos as a key aspect of the

Court legitimizing role.

For societies involved in an intractable conflict, expressions of ethos of conflict hold

considerable legitimizing potential for state actions related to the conflict: according to Bar-Tal,

ethos provides “legitimacy to the societal order and fosters integration among society members”

(Bar-Tal, 2013, p. 174). At times, legitimization of our society’s actions is generated through the

de-legitimization of the other society in the conflict (Kelman, 1999). Societies involved in an

intractable conflict often award the state a carte blanche for violent actions against the other side

to the conflict: ethos societal beliefs legitimize state actions related to the conflict by providing

an all-encompassing narrative which enables ready-made rationalizations for what are often

violent actions involving breach of basic human rights (see Chapter 2).

197

The results of the present research offer insights into the way the Court legitimizes state actions

related to the conflict: Three separate aspects of the present research findings support the use of

the ethos to promote the legitimacy of state actions related to the conflict: first, the prominence

of four specific clusters of ethos societal beliefs, second, the differentiated use of the ethos,

which is significantly more prevalent in key decisions, third, Court decisions of political, social

or legal importance. Finally, decisions resulting in a Palestinian loss utilize more ethos

expressions than decisions resulting in a Palestinian win and considerably less alternative beliefs.

The following paragraphs discuss these aspects in relation to the legitimization of state actions:

First, the four clusters of ethos societal beliefs found to be prominent by the present research:

delegitimization of the opponent; security; own victimization and justness of own goals ethos, all

promote a sense of legitimacy for the actions of the Israeli state among Israeli Jewish members

of society (see Chapter 2). By delegitimizing the opponent, Israeli Jewish society adopts a view

of the Palestinians as inherently culpable, alleviating itself from the necessity to critically

examine violent State actions. A perception of our society as the ultimate victim of the conflict as

well as the belief in the justness of our own goals both allow Israeli society to think of the state

as a hapless victim, responding, at times, in a violent manner, given a need to protect its

members from external, potentially life-threatening, enemies. Therefore, the actions of the state

in relation to the conflict, however violent and in contradiction to international law or basic

moral values are nonetheless regarded by the majority of the Jewish Israeli public as both

justified and moral. Finally, security beliefs provide an all-enveloping narrative in which security

considerations are perceived as justifying violent actions by the state. The societal beliefs

regarding security limit the capacity of the majority of the Jewish Israeli public to consider

alternative actions.

Second, the differentiated use of the ethos, found to be significantly more prevalent in decisions

of political, social or legal importance, provides evidence of relations between tangible aspects

of the Court decisions and the extent to which the ethos of the conflict has been used by the

Court. The findings according to which each of the six peak years reflects an extensive use of

ethos expressions in a single court decision, support Kretzmer’s claim that the legitimizing

function of the court has been especially dominant in decisions "dealing with substantive

198

questions of principle or policy" (Kretzmer, 2002, at p. 196). In other words, the legitimization

of state actions with regard to the conflict is manifested by the research findings which have

found a positive relationship between an extensive use of the ethos and heightened legal,

political or social significance of a Court decision. These findings, implying that a rather small

number of decisions employed a large number of ethos expressions, correspond with Salzberger's

(2003) and Meydani's ( 2011) assertions that only a small fraction of the Court’s high-profile

decisions receive public attention. This observation suggests that the pattern of ethos utilization

by the Court, noted by the present research, is an indicator of the Court's quest for legitimacy:

The Court chose not to utilize ethos expressions indiscriminately throughout its decisions, but

rather used ethos expressions extensively in decisions which were likely to be widely covered by

the media, thereby minimizing the use of the ethos while utilizing it in the most efficient manner.

Third, decisions resulting in a Palestinian loss utilize more ethos expressions (67.9% of

decisions) than decisions resulting in a Palestinian win (62.2% see Chapter 6, Table 11).109 The

extensive use of ethos expressions in decisions resulting in a Palestinian loss should be regarded

as legitimizing state action as these decisions, categorized as a ‘Palestinian loss’ for the purposes

of the present research, often result in a state win (see research variable definitions, Chapter 5).

Further evidence for the significance of the research findings regarding the extent of the use of

the ethos in decisions resulting in a Palestinian loss is provided by findings regarding the

intensive use of the ethos in decisions of political, social or legal significance. These findings,

and the overall number of ethos expressions compared to the number of database decisions (737

expressions as compared with 757 decisions), indicate that the overall extent of the use of the

ethos by the Court is low; therefore average use of the ethos is much lower than the extent to

which ethos expressions were found in decisions resulting in a Palestinian loss.

109 While the difference may seem statistically insignificant, it should be noted that the decisions researched are not a statistical sample but rather the whole population of the Court published decisions regarding the conflict. The results are within the usual scientific standard to prove statistical power (in order to avoid Type I errors regarding Null hypothesis). Yet given that the population studied is all the relevant decisions, there is no need to prove statistical power as the results are not generated through use of statistical tools but rather are the real results for the whole population. It should be noted that 67.9 should be regarded as 100 percent, therefore the difference between the two results should be regarded as 8.4 percent.

199

The use of the ethos in decisions resulting in a Palestinian loss can also be explained by the need

to provide further legitimization to the state’s actions in decisions resulting in a Palestinian loss,

given that such decisions involve a Palestinian party. An extensive use of the ethos can be

regarded as an attempt to avoid the risk of being exposed to negative emotions about our state,

Israel, which damages our ability to feel morally just (see Chapter 2).

Low Levels of alternative beliefs

Societies involved in intractable conflict exert great efforts to ensure that society members

adhere to the dominant conflict supporting repertoire and ignore alternative information. In other

words, the society constructs mechanisms to guarantee that the themes of collective memory and

the ethos of conflict, as well as collective emotions, are maintained and that alternative

knowledge about peacemaking possibilities do not penetrate into the social sphere and, even

when they do, they are rejected (Bar-Tal, 2011, 2013; Bar-Tal, Oren, Nets-Zehngut, in press;

Horowitz, 2000; Kelman, 2007; see Chapter 2).

Low levels of alternative beliefs, as manifested by decisions resulting in Palestinian loss (4.9%),

should be regarded in conjunction with the high levels of ethos expressions in the same type of

decisions: a higher level of alternative beliefs would circumvent the goal of the extensive use of

the ethos – promoting a simplified, worldview according to which the actions of Palestinians are

immoral and therefore their legal claims (in the context of the conflict) unjust. In order to

promote this worldview, the court utilizes alternative beliefs only rarely. The sparseness of

alternative beliefs found in decisions resulting in Palestinian loss echoes present research

findings for all database decisions: Only 13 percent of beliefs were found to be alternative

beliefs. Therefore, the use of the ethos of the conflict by the Court involves the silencing of

alternative explanations for the conflict, its past, its future and its present. As noted by Israeli

poet, Mei-Tal Nadler, “Rumors circulated outside that some words have begun to disappear/from

the dictionary, but no-one remembered which words”:110 In order to realize their full potential,

societal beliefs of ethos of conflict are offered by the Court in a singular manner, while

110 Nadler, M. (2014), X Days Following An Amnesia Plague, In Exercises In Electricity, Yedioth Ahronot, Hemed Books, P. 9 (In Hebrew, My Translation, O. S. L.).

200

alternative beliefs disappear (or more accurately, do not appear from the first instance). The

frequent appearance of ethos of conflict societal beliefs as opposed to alternative beliefs offers

insight into the possible legitimizing role of the ethos for the actions of the state: The ethos

societal beliefs provide an overall narrative, available throughout its decisions as an alternative

source of legitimacy (see Section 3 below). The significance of the ethos-alternative belief

imbalance is further observed examining decisions resulting in Palestinian loss as well as

decisions resulting in Palestinian win: both types of decisions, while manifesting contrasting

legal results, contain much higher levels of ethos societal beliefs in comparison to alternative

beliefs. Finally, as noted above, ethos expressions are almost 9 to 1 more frequent than

alternative expressions for all database decisions.

Attempts to Attain Legitimacy by the Court

The legitimacy of all judicial decisions depends upon the perception of courts as neutral and

evenhanded. However, should a court stray too far from socially held values, its social

legitimacy will likely diminish. Studies have established a connection between court legitimacy

and willingness to abide by their judgments (see Chapter 3). The Israeli Supreme Court is the

highest court of what is considered by many “the weakest branch” of the state (Dorner, 2006, p.

428), reflecting Alexander Hamilton’s classic observation that “the judiciary is beyond

comparison the weakest of the three departments of power” (1788). The Court aims to attain

legitimacy with regard to decisions related to the conflict for the following additional reasons:

First, strong support by the Israeli Jewish public may limit Israeli army practice of not enforcing

Court decisions regarding the conflict (see Chapter 3). Second, the Supreme Court has

experienced a gradual process of legitimacy loss, partly for reasons unrelated to the conflict,

involving both Jewish religious groups, as well as the formerly hegemonic liberal group (see

Chapter 3). The Court’s use of the ethos of the conflict, therefore, reflects an attempt to gain

legitimacy in a highly fractured society. Third, the decision to hear petitions by Palestinians, who

are not Israeli citizens, is largely responsible for the central role the Court has played in the

conflict for the last five decades. This decision, which has accorded the Israeli occupation of the

Palestinian territories with a semblance of rule of law, has been discussed by former chief

justice, Aharon Barak in a lengthy interview given after Barak left office "I would not fall off my

201

chair if in, the context of a full constitution, the High Court of Justice was ordered not to deal

with the activities of the state outside its borders, in other words, that there would be no judicial

review of what is happening in the [occupied] territories. Let it be clear, I think that this

provision would be a very bad thing, but if this is the price to pay in order to have a constitution,

I am willing to pay it" (p. 142, my translation, O.S.L.). (Bendor & Segal, 2009).111 Barak’s

statement reflects the harsh criticism suffered by the Court, given its prolonged and intensive

involvement in the conflict. While both scholars and the Israeli public have criticized the Court

in relation to its decisions related to the conflict, it should be noted that Barak’s statement hints

at another reason for the de-legitimization of the Court: its mere involvement with some of the

most important issues at the core of the conflict, issues which are unfortunately also inherently

immoral.

Given these challenging circumstances, the ethos of the conflict provides a readily-available

solution to problems which have impinged upon the Court’s ability to preserve the public image

of a majoritarian, Jewish, and security-minded institution (Barzilai, 1999). The present research

findings with regard to the extensive use of ethos societal beliefs in decisions of political, social

or legal significance may promote the legitimacy of the Court, allowing Israeli Jewish society to

consider the Court as a legitimate institution, rather than a critical voice challenging the actions

of the state and therefore also one which impinges on Jewish Israelis ability to believe that their

society is moral and just. A legitimized Court provides the state, and Israeli society as well, with

distinct moral clout, due to the significant role of the Court as the most important court of the

Israeli legal system as well as its role as a symbol of state democracy (see Chapter 3).

However, while considerable overlap exists between the Court’s attempts to legitimize its own

decisions and attempts to legitimize the actions of the state, the two are not similar: According to

Shamir, the Court has legitimized the actions of the state by ruling in favor of Palestinian causes

in a few significant, ‘landmark’ cases thereby fortifying the “image of the court as an impartial

body which boldly challenge[s] the government in pursuit of justice” (1990, p. 795). Ruling in

favor of Palestinian causes has likely had an adverse influence on the Court legitimacy, at least

111 Barak's position could be said to have been anticipated by Sfard who noted that the humanitarian laws which the Court had attempted to uphold with regard to the occupied territories, "have been digested" and were discovered to have "a bitter aftertaste", and "are now ready to be extracted" (Sfard, 2004, p. 179, my translation, O.S.L.),

202

with regard to well publicized decisions, given the imminent contrast between the Court’s

tangible decision on the one hand and ethos societal beliefs shared by the majority of the Israeli

Jewish public, which include de-legitimization of the Palestinians and belief in the justness of the

Israeli society goals on the other hand. Significant decisions resulting in a Palestinian win also

impinge upon the Court's legitimacy due to the binary, zero sum game nature of intractable

conflicts (see Chapter 2) which does not allow both sides to consider issues related to the conflict

as beneficial for both societies involved. As noted by Saban, Court decisions, in favor of a

Palestinian plaintiff, were positively received by the Arab minority in Israel, lending the social

order “a modicum of legitimacy” (Saban, 2011, p. 343; see also Barzilai, 2000).

Shamir’s discussion of decisions resulting in a Palestinian win, or “landmark cases”, can explain

the role of the high levels of alternative beliefs found in these cases: The results of the present

research suggest alternative beliefs are much more common in decisions resulting in a

Palestinian win (31.7%) than in decisions resulting in a Palestinian loss (4.9%). The extensive

use of alternative beliefs in decisions resulting in a Palestinian win may have contributed to the

legitimacy of the Court among some members of Israeli society: most of them Arabs, but also a

Jewish minority, who do not share the societal beliefs of the ethos of the conflict. The Court’s

impartiality regarding decisions resulting in a Palestinian win is further manifested by the

presence of alternative beliefs, implying that the Court is able to formulate an opinion based on

ideas outside the realm of the ethos of the conflict.

Examining research results regarding changes occurring in alternative beliefs over six decades

(see Chapter 6, Chart 14 - Ethos & Alternative Expressions per decision: own victimization,

Chapter 6, Chart 15 - Ethos & Alternative Expressions per decision: Justness of our goals, and

Chapter 6, Chart 16 - Ethos & Alternative Expressions per decision: Security) reveals that

alternative beliefs began to emerge in the late 1970s while, during the Oslo peace process,

alternative beliefs significantly grew in number, at times even surpassing the number of the

mirror ethos societal belief cluster for a certain year. This gradual trend corresponds with

findings of previous studies regarding Israeli Jewish society and the conflict with the

Palestinians, which have suggested that alternative beliefs only began to emerge as late as the

1970s. By the late 1990s, the development of alternative viewpoints reached its zenith with

203

growing expressions recognizing the Palestinian collective right to a state, that provided a basis

for changing Israeli Jewish goals, legitimizing and humanizing Arabs, as well as questioning key

aspects of the Israeli Jewish ethos of conflict, such as the exclusivity of Jewish victimhood in the

conflict, and even moral superiority of acts committed by Israel (Oren 2005, 2009; Bar-Tal,

2007). It can be argued therefore that during the 1990s the Court's growing use of alternative

beliefs recognized an alternative culture that gradually began to challenge the dominant culture

of conflict (Bar-Tal, Halperin & Oren, 2010; Vered & Bar-Tal, 2014). The Court’s use of

alternative beliefs therefore points to the Court’s ability to accurately reflect changes, even

marginal ones, in Israeli Jewish society.

Ethos of Conflict as an Alternative Source of Legitimacy

As noted in Section II above, peaks represent key decisions of marked political, social or legal

significance, thereby stressing the fact that the Court sought to provide some of its most

important decisions with an additional source of legitimacy by drawing on the legitimizing

capacities of the ethos of the conflict. Yet examination of the time period of the peak decisions

reveals that the Court utilized extensive levels of ethos expressions when legal sources of

legitimacy were not readily available. This is manifested by the fact the seven highest results of

accumulated standard score for the four most predominant ethos societal beliefs are set between

1964 and 1980 (see Chapter 6, Table 9) and the highest ten results are still in a similar time

frame, except for an additional single result, the year 2004. Israel's prolonged occupation of the

Palestinian territories has burdened the Supreme Court, whose judges are regarded not only as

legal experts but also as "guardians of society's moral fabric" (Kretzmer, 2002, p. 190). The

consequences of the 1967 War created an ‘immoral space’ beyond the Green Line (Shenhav,

2010). However, for the first two decades following 1967, the Court was the sole state institution

which reviewed the activities of the military authorities in the occupied territories, leading to a

significant and gradual loss of legitimacy among major groups in Israeli Jewish society (see

Chapter 3). However, until the 1970s the Court’s involvement in civil-political and military-

security issues was marginal (Barzilai, 1999). As noted by Kretzmer, the occupation created a

potential dissonance within the Court, given the difference between ‘regular’ jurisprudence of

Israel and that of the occupation. The role of the Court also raised questions about balancing

204

security arguments against individual human rights (2002). Kretzmer notes that an element of

neutrality could not have existed in disputes between military authorities and residents of the

occupied territory (2002), while Karayanni notes that the Court had to resort to creative measures

in modifying existing personal jurisdiction rules in the context of civil actions related to residents

of the occupied territories, separating between Palestinians, whose claims were rejected by the

Israeli judicial system, and Israeli settlers (2008).

A view of the ethos as a replacement mechanism, compensating for the loss of legitimizing legal

sources, echoes perception of legitimacy as a product of well calculated rather than random

judicial policy (Shamir, 1990) and of the Supreme Court as one of the central mechanisms

managing the Palestinian-Israeli conflict (Kimmerling, 2002).

The ethos of conflict is not the only instrument used by the Court to alleviate some of the

tensions described above. Other means do exist, for example, President of the Israeli Supreme

Court, Dorit Beinisch noted in a closed meeting “the Court does not weigh questions regarding

the legality of settlements in its decisions” (US Tel Aviv Embassy, 2007, section 4(c)).According

to Barzilai, the Court has not challenged “any major tenet of the Israeli political regime, it has

not altered any fundamentals of the Jewish character of the state, and it has not questioned the

military regime in the territories or the dominance of security considerations in Israel's public

life” (Barzilai, 1999, p. 29).112

Additionally, ethos of conflict as a system of justifications is external in its nature, different than

legal justifications (laws, precedents) utilized by the Court to substantiate its decisions, avoiding

the need for rational argumentation: ethos of conflict provides ready-made constructs which, in

essence, may jeopardize the Court efforts to attain legitimacy, given the rational manner in which

its decisions are allegedly made. This may explain the relative sparseness of ethos expressions in

many of the database decisions, as well as the contrasting trend, the extensive use of ethos

expressions in unique key decisions of political, social or legal importance (see also discussion in

paragraph 1 above).

112 However, in some circles of Israeli Jewish society Ka’adan decision is regarded as doing exactly that.

205

An example of a court decision demonstrating the extensive use of ethos expressions as

alternative sources of legitimacy is Ajuri v. IDF Commander in West Bank ("The Ajuri case").113

The Ajuri case is a response to a petition against the military commander of the Israel Defense

Forces in Judea and Samaria's ‘order assigning place of residence’ of three Palestinians, Kipah

Mahmad Ahmed Ajuri, Abed Alnasser Mustafa Ahmed Asida and Amtassar Muhammed Ahmed

Ajuri, from their homes in the West Bank to the Gaza Strip. Chief Justice Barak, who delivered

the opinion of the court, utilized a significantly large number of ethos expressions, including a

discussion of Mrs. Bridget Kessler, the mother of Gila Sara Kessler, who was killed by a

Palestinian at the French Hill crossroads in Jerusalem. According to President of the Court,

Aharon Barak, Mrs. Kessler’s testimony “emphasized the moral aspect in assigning the residence

of the petitioners to the Gaza Strip” (p. 10, paragraph 10). Barak’s opinion utilizes ethos

expressions liberally, including positive self-image and collective victimization: “[T]he State of

Israel is undergoing a difficult period. Terror is hurting its residents. Human life is trampled

upon. Hundreds have been killed. Thousands have been injured. The Arab population in Judaea

and Samaria and the Gaza Strip is also suffering unbearably. All of this is because of acts or

murder, killing and destruction perpetrated by terrorists. Our heart goes out to Mrs. Kessler who

lost her daughter in a depraved terrorist act and to all the other Israelis who have lost their

beloved ones or have been themselves severely injured by terrorist attacks. The State is doing all

that it can in order to protect its citizens and ensure the security of the region” (paragraph 41).

The extensive use of ethos expressions in Ajuri (the decision contains nine ethos expressions)

provides an alternative source of legitimacy for the court: It temporarily limits readers’ capacity

for critical thinking about state actions, masking the ‘immoral space’ in which the Court acts and

alleviating some of the burden on the Court to serve as the guardian of morality. In the context of

the Ajuri decision, the extensive use of the ethos of the conflict may also have served to

legitimize the Court’s decision, which amounted to a partial victory for the Palestinians.

113 HCJ 7015/02 Ajuri V. IDF Commander In West Bank, PADI 56(6) 352. An Official English Translation Of The Verdict Is Available At: Http://Elyon1.Court.Gov.Il/Files_Eng/02/150/070/A15/02070150.A15.Pdf

206

The Court as a Source of the Ethos of the Conflict

As noted in Chapter 2, ethos of the conflict is created by social institutions. It has been argued

that the Supreme Court has played a leading role in the creation of the linguistic infrastructure

which has legitimized the occupation and the settlements (Kimmerling, 2002; Lynk, 2005).114

The Court’s use of ethos societal beliefs does not only echo past beliefs but also contributes to

the creation and institutionalization of the ethos: Given the unique legal roles of the Court (see

Chapter 3), as the High Court of Justice and as a court of appeals, the Supreme Court is at the

head of the court system in the state, setting binding precedents for all other Israeli courts. The

Court is also the highest judicial instance and the first Court to deal with some of the most

contentious aspects of the conflict. By using ethos expressions extensively in key decisions of

political, social or legal significance, the Court shapes public perception of core issues relating to

the conflict, given the Court might be the first legal instance to discuss these issues.

Still, the Court not only introduces ethos expressions in decisions regarding key aspects of the

conflict: Court decisions are also binding by law, serving as precedent for future court decisions

and therefore are likely to be quoted by Israeli courts in the future, increasing the impact of ethos

expressions by allowing them to be copied and disseminated years and decades later. This should

inform research regarding textual aspects of the Court. As noted by Austin Sarat and Thomas

Kearns, who further develop Cover’s view of the judiciary, the interpretive effort of a court

decision must first acknowledge that violence is intrinsically embedded in the legal action. The

role of the interpreter is therefore to expose the "cold separation" between the legal text on the

one hand and the legal action on the other hand: Analyzing law as violence or law as a literary

text contributes to the invisibility of the violence embedded in the law (Sarat & Kearns, 1991, p.

211). A later position offered by Sarat, questions whether such separation is possible, given that

law's violence is both a physical and a textual phenomenon, "The linguistic, representational

violence of the law is inseparable from its literal, physical violence" (1999, p. 6). Therefore, the

114 As Noted By Michael Lynk, "Over The Years, The HCI Has Tutored The Israeli Political And Military Leadership On The Proper Terminology It Should Use In Defending Its Projects In The Occupied Territories In Order To Pass The Court’s Judicial Litmus Test (E.G., “Security,” “Temporary,” “Military Necessity,” “The Humanitarian Features Of The Fourth Geneva Convention”). And, As Is Clear From Their Successes Before The Court, They Have Learned The Lesson Well". (Lynk, 2005, P. 11)

207

interpretation of judicial decisions may be able to expose violence embedded in the text, an echo

of the violence of the legal action.

Several critical accounts of the social and political roles of the Supreme Court regarding the

conflict with the Palestinians offer a view of the Court as an active institution, while judges are

portrayed as intentionally providing legitimacy for the actions of the state. However, findings

regarding the Court’s involvement in the process of institutionalizing the ethos of conflict do not

imply that judges are consciously legitimizing state actions by utilizing ethos societal beliefs.

Rather, use of the ethos of the conflict by the Court justices can be argued as being reflective of

the unique traits of the ethos societal beliefs, beliefs which are shared by the majority of Israeli

Jewish society. The following paragraphs explore this notion in detail:

First, according to the findings of the present research, the Court extensively utilizes four clusters

of ethos beliefs: delegitimization of the opponent; security; own victimization and justness of

own goals. These four clusters consist of more than 85 percent of total ethos expressions found

by the present research (see Chapter 6, Table 3). As noted in Section II 3 above, the four most

predominant clusters of ethos societal beliefs were observed by research as the most significant

clusters of ethos societal beliefs in the context of Israeli Jewish society. Throughout the research

period, nearly 90 percent of the yearly averages of use of each of the four prominent societal

beliefs of the ethos of conflict were found to be within one standard deviation (see Chapter 6,

Tables 5-8 and Charts 8-11). These findings suggest that the use of the ethos is not exclusive to a

certain period or a result of the opinions of individual judges, but rather a prolonged

psychological characteristic reflecting the protracted conflict. It is highly unlikely that Court

judges, who retire and are therefore replaced by younger judges over time, would be able to

replicate the prominence of the four clusters of societal beliefs, over a period of six decades.

Second, Sharvit’s (2008, 2014) two experimental studies demonstrate that the ethos of conflict is

automatically deployed by members of Israeli Jewish society as stressful information related to

the conflict is mentioned. In other words, the ethos is a result of automatic thought process rather

than one that is made in a conscious, aware manner. Sharvit’s findings were not related to a

willingness to support peaceful resolution of the conflict. The activation of the ethos is a coping

208

mechanism that allows for the alleviation of stress (Bar-Tal, 2013): For example, an extensive

use of the societal belief regarding one's own victimhood has been linked to low levels of

collective guilt (Schori-Eyal, Klar & Roccas, 2011), thereby reducing levels of stress caused by

negative feelings such as guilt. These findings may serve to explain the gap between the

extensive use of ethos expressions in relatively few key decisions of political, social or legal

significance and the few expressions in many other decisions of lesser importance: the latter

decisions do not cause automatic deployment of the ethos given that their subject matter contains

less stressful information regarding the conflict. This may also explain results regarding high

levels of ethos of conflict expressions in both decisions resulting in a Palestinian win and

decisions resulting in a Palestinian loss: Both contain potentially stressful information regarding

the conflict, if only due to their legal outcome, on the one hand, legitimizing state actions (in

most cases) which cause a Palestinian loss and on the other, legitimizing the opponent, which is

potentially a stressful legal outcome as it de-legitimize existing ethos beliefs.

Third, judges’ social membership, as members of a society steeped in an intractable conflict, is a

key to understanding the extensive use of the ethos of conflict in key decisions of political, social

or legal significance. The importance of social membership in constructing one’s own beliefs and

perceptions, especially in the context of societies involved in intractable conflicts, has been

evident in a proliferation of research: According to Bar-Tal and Halperin (2013), society

members are motivated to consider beliefs of the ethos of the conflict and collective memory as

truthful and valid because these beliefs fulfill various needs for them. Therefore, society

members use various cognitive strategies to increase the likelihood of reaching particular

conclusions that will reaffirm previously held knowledge (Kunda, 1990). As part of this process,

members of society reject information that contradicts conflict supporting beliefs, but are willing

to accommodate information that validates the desired conclusion (Bar-Tal & Halperin, 2011).

The use of ethos of conflict expressions can therefore be regarded as a response to what the

Court justices experience as an attack on their worldview and on their society’s collective

identities. Justices can also be perceived as outsiders to their own community, given the nature of

the Court as an ivory tower, an institution removed from society, as distance allows justices to

remain impartial or at least project an image of impartiality onto litigants and the whole of the

209

Israeli society. However, justices may unconsciously identify the ethos of conflict as an

authentic, highly popular voice, which grants the Court significant legitimacy. Therefore, the use

of the ethos of conflict by the Court can also be perceived as an unconscious attempt to limit the

undesired influences of the inaccessibility of the Court experienced by the majority of the Israeli

society, as well as by the Court’s justices.

Through the ceaseless adjudication of cases related to the conflict, judges are exposed to a

multitude of testimonies and other evidence concerning unjust, immoral and violent actions

committed by Israel. Judges’ inability to distance themselves from attacks on their society is both

frustrating and agonizing. Israeli poet, Yehuda Amichai, points to the mental and social

challenges of bearing witness to immoral actions:

Out of three or four in the room

One is always standing at the window.

Forced to see the injustice among thorns,

And the fires on the hill.

And how people who left whole

Are returned home in the evening, like small change.

Out of three or four in the room

One is always standing at the window.

His hair dark above his thoughts.

Behind him, the words,

And before him, wandering voices without a bag,

Hearts without provision, prophecies without water

And large stones returned

But left sealed as letters

With no addresses and no one to receive.

[Out of Three or Four in the Room, Yehuda Amichai, my translation O.S.L.]

210

The Supreme Court has been the place where plights of the disadvantaged cannot remain sealed

but must be addressed. Similar to Amichai’s protagonist, judges have no choice but to be a

witness, “forced to see the injustice”. Judges are burdened by the “wandering voices without a

bag”, testimonies which negate parts of the social identity. However, while Amichai's

protagonist is moved by his inner conviction, the court’s judges are required to respond to

Palestinian complaints due to their role as judges, rather than a willingness to recognize the

immorality of Israeli involvement in the conflict.

An interesting view of judicial decision making, although somewhat general, is offered by

former President of the Supreme Court, Aharon Barak. Barak portrays judges as philosophers,

balancing their own concept of the judicial role with attitudes towards the other branches of the

state. Barak notes judges “usually display caution and self-restraint. Their sense of personal

responsibility reaches its peak.” (Barak, 2002, p. 59). However, Barak is also adamant that the

process of adjudication is an attempt to balance logic and emotion, a product of the judge's life

experience and that of society. Barak also adds that the act of adjudication subjects judges to

tremendous internal pressure (Barak, 2002, pp. 58-9). While this approach may be considered

naïve, given perspectives offered by scholars of critical legal studies, it is interesting to regard

Barak’s views as a testimony to the difficulty in attaining firsthand accounts of the act of

judging.

The gap between Barak’s concept of adjudication and the findings of the current research

regarding the prevalence of the ethos of the conflict is made clear when examining one of the

most striking examples of the use of the ethos by the court, Alamarin v. IDF Commander in

Gaza Strip,115 regarding the sentencing of Helena Rapp’s killer. The decision includes an opinion

by Justice Mishael Cheshin, infused with expressions of ethos (societal beliefs regarding unity

and own victimization) as well as collective memory:

“And so Helena Rapp’s soul returned to its Maker.

When reading this statement, the heart beats wildly and horror seizes us. The person who

admitted murder did not have work to make a living and so he decided to murder a Jewish girl.

115 HCJ 2722/92, PADI 46 (3) 693.

211

Two girls came his way, and for some reason he decided to kill the older one. (…) The girl,

Helena Rapp of blessed memory, went to heaven in the prime of her life merely because she was

a Jewish girl, a Jewess in the land of the Jews. For the death of little Helena there is no

atonement, nor will there ever be:

‘And cursed be he who says: Revenge!

Such revenge, revenge for the blood of a small boy,

The Satan has not yet created —

Let the blood pierce the abyss!

Let the blood pierce through to dark abysses,

And decay in the dark and there destroy

All the rotting foundations of the earth.’

Thus lamented our national poet (H.N. Bialik) in 1903 — after the Kishinev pogroms — the

murder of a small Jewish boy in the Diaspora. Ninety years have since passed, and we now

lament a small girl in the land of the Jews, and the girl is Helena Rapp".

Cheshin’s opinion was a minority one, noting a demolition of part of a house of “other family

members were not partners in the wicked deed, either directly or indirectly” is wrong, utilizing

the values of Basic Law: Human Dignity and Liberty.116 However, the opinion is linking a

horrific act of violence occurring recently in Israel with violent events which took place almost a

century before in Eastern Europe, is arguably an expression of a chosen trauma, a term coined by

psychoanalyst Vamik Volkan to describe a shared mental representation of a traumatic event in

the history of a given society (such as a catastrophic loss or deep humiliation). It should be noted

that Cheshin focuses on an event which occurred many years before the Holocaust, rather than

the Holocaust itself, a choice which seemingly reflects the question of whether the Holocaust had

already been framed as a chosen trauma. For example, while Lazar, Litvak-Hirsch and Chaitin,

(2008) note that the Holocaust is already a chosen trauma, Volkan stresses that it is currently

premature to suggest that this is indeed the case as the Holocaust is a “hot” trauma, still on its

way toward becoming a chosen trauma (2004, 2014). Volkan notes that the memory of trauma

prevents members of the society from undergoing a process of mourning their loss (Volkan,

2006). Instead, memory of the trauma is passed on to the next generations in a raw, un-

116 Justice Cheshin opinion, section 5.

212

metabolized, form. Traumatic memories are not mediated by subsequent events: they remain

intact, in an endless feedback loop, as if time has stood still (Boulanger, 2002). As time passes,

these mental representations become dominant in the context of social narrative, uniting society.

Whether Cheshin’s discussion, is also a reflection of true emotional upheaval or a calculated

attempt to gain legitimacy by drawing on collective memory and ethos expressions is beyond the

scope of the present research. However, this example sheds light on the ethos as an expression of

traumatic response to a past trauma not worked through, which is also manifested by a collective

memory. As noted by Bar-Tal, ethos and collective memory are in constant relations and

“maintain each other, as well as mutually affect the development” of each other (Bar-Tal, 2011,

p. 11). Indirect evidence linking a view of ethos expressions as a manifestation of trauma in court

decisions regarding the conflict is provided by Feldman (1995) and Jabareen (2001) who note

that the court is unable to recount history using the Palestinian historical narrative, and by Sfard

who criticizes the court’s use of the Israeli military ethos and what he describe as “post-

Holocaust Jewish fear" (Sfard, 2004, p. 173).

From a psychoanalytic perspective, the use of ethos expressions and the limited role played by

alternative beliefs in the court’s decisions can therefore be regarded as the results of a traumatic

reaction which encroaches upon judges’ cognitive and linguistic capacities: Trauma limits the

ability to think – it is manifested by what psychoanalyst Wilfred Bion termed ‘thoughts without a

thinker’ - thoughts existing long before there is a mind able to think them, due to their traumatic

content. Similarly, according to Bion, new thoughts are perceived by the psyche as potentially

disruptive and shattering (Glover, 2009). Resistance to new thoughts can be observed in the

context of the Burkan case, for example, which, as Feldman notes, includes manifestations of

“judicial rage” (1995, p. 724) towards Burkan’s attempts to construct his own narrative, one

which was markedly different than the ethos of the conflict or collective memory of Israeli

Jewish society.

213

Creating and Sustaining a Positive Self-Image for the Israeli Jewish Society

In comparison to the roles and functions of other social apparatuses which institutionalize the

ethos of conflict, the role of the Court has additional aspects: As the highest court of the land it is

a symbol of democracy in the State of Israel. This is arguably a role fulfilled by supreme courts

in democratic states, for example, the American Supreme Court (Bork, 1990). According to

Kretzmer, the Israeli Supreme Court enjoys enormous prestige, some of which flows directly

from its unique, one of a kind role in the context of the conflict, with relation to the Palestinians

who reside in the Occupied Territories: there is no precedent for a legal review of the acts of a

military occupying force by a domestic court: “By clothing acts of military authorities in a cloak

of legality, the Court justifies and rationalizes these acts” (Kretzmer, 2002, p. 2). The Court

therefore promotes legitimacy for the actions of the state and, at the same time, utilized the ethos

of the conflict extensively, which solidifies a positive self-image for the majority of the members

of Israeli Jewish society. As noted by Kretzmer (2002), while the Court fails to legitimize the

actions of the state in the eyes of Palestinians residents of the Occupied Territories, it has

attained that goal with regard to the Israeli Jewish society. This can be perceived to be related to

the extensive use of the ethos of the conflict, which - in addition to the tangible results of the

same Court’s decisions –contributes to the legitimization of the actions of the state by catering to

the psychological needs of its own society, not those of the Palestinians.

Complementing the legitimization roles of the ethos of the conflict discussed in Sections 1, 2 and

3, the Court's use of the ethos reflects the need of societies engaged in intractable conflicts to

maintain societal beliefs that form and support their positive self-image (Oren, Nets-Zehngut &

Bar-Tal, in press; see also Chapter 2). An individual’s willingness to be part of a group stems

from basic human needs, which are met by becoming a member of a collective (Coutant,

Worchel & Hanza, 2010). These include the need to create interpersonal relationships, preserve

positive self-esteem and feel secure and protected (Baumeister & Leary, 1995; Mack, 1983).

Faced with the violent and prolonged attributes of the Israeli-Palestinian conflict, the ability to

sustain and promote a positive self-image of Israeli Jewish society as a moral society is

hampered by the use of violence and the loss of life in ‘our’ society (as well as, to a lesser extent,

in Palestinian society), which entails feelings of guilt and shame (Bar-Tal, 2007).

214

The court’s use of expressions of the ethos societal beliefs lessens cognitive and emotional

tensions by providing Israeli Jewish society with a rigid worldview according to which the

violent actions undertaken by Israel are justified (see Chapter 2). An extensive use of the ethos of

the conflict by the Court in important decisions related to the conflict is an expression of the

Court's attempt to cater to the needs of Israeli Jewish society by projecting a positive self-image.

The four clusters of ethos beliefs found to be predominant in the database decisions (see Chapter

6, Table 3): delegitimization of the opponent, security, own victimization and justness of own

goals, all generate a positive self-image for Israeli Jewish society by providing justifications for

the actions of the state and by dehumanizing the Palestinians. For example, beliefs about our

society’s victimhood, implying that the conflict was imposed by an adversary who fights for

unjust goals and uses immoral means to achieve them (Bar-Tal, Chernyak-Hai, Schori & Gundar,

2009; Bar-Tal, 2013), provide clear answers to crucial questions brought before the Court. Few

cases offer an alternative view of Palestinian actions and goals.

Research Limitations

A notable limitation of the present study is the fact that ethos of conflict expressions, as well as

all other expressions of socio-psychological variables, are dependent on subjective evaluations of

a single researcher. Moreover, during the preliminary stage of the present research, the database

had to be created, consisting of all published decisions of the Israeli Supreme Court which were

found to be related to the Israeli-Palestinian conflict. As noted in Chapter 5, inter-judge

reliability was used twice, for each stage of the present research, and high inter-judge reliability

scores were obtained for each of the two stages of the research. However, replication of the

findings utilizing a more objective process would strengthen the conclusions.

Another major research limitation stems from the decision to study only published decisions of

the Court, which fails to accurately reflect the scope and nature of the Court’s involvement with

cases relating to the conflict. However, as noted in Chapter 4, this was a conscious decision,

reflecting, in part, the fact that, given the difficulty of accessing unpublished decisions for most

215

of the period researched, Israeli society, as well as the majority of the Israeli professional legal

community, has remained largely ignorant of this important aspect of the Court’s work.

Contribution to Future Research

The present research has contributed to the study of intractable conflicts by examining the

functions of the most important court in a society involved in an intractable conflict. It is likely

that no prior study has attempted to examine all published and relevant decisions of a court

adjudicating under conditions of intractable conflict. The present research therefore informs

future studies regarding possible interactions between law and conflict resolution studies, and

political psychology, for example, with regard to the manner in which courts draw upon

psychosocial mechanisms to fortify an existing social worldview, to legitimize state’s actions as

well as their own social status.

The Israeli Supreme Court is one of the most intensively researched courts. The Court’s

involvement in the conflict with the Palestinian has also been studied extensively. However, the

present research is the first containing all published Israeli Supreme Court decisions related to

the Israeli-Palestinian conflict during six decades, from 1948 until 2006. Before discussing

possible contributions of the current research to legal studies, its unique focus on the Israeli

Supreme Court should be noted. This court is a major player which has contributed significantly

to shaping the legal arrangements regarding major aspects of Israel’s involvement in the conflict,

and its investigation has benefited the study of the Israeli-Palestinian conflict. The present

research informs the study of this extensively researched conflict by shedding light on the

persuasive capacities of the ethos of the conflict, and how this ethos has been employed to gain

legitimacy by state actors who play key roles in shaping the conflict, such as the Court.

The current research offers a view of the pervasiveness of the ethos of the conflict in the context

of Israeli Jewish society, shaping decisions of the Supreme Court, which is considered a bastion

of justice, protecting society from current trends by promoting constitutional ethos, serving

human rights and democratic values. The present study results are therefore a testimony to the

216

significance of the ethos of the conflict, which is used to legitimize both the Court itself as well

as state actions related to the conflict.

Given the above, the results of the present research are likely to benefit a broad range of future

scholarship: Legal scholars will be able to study the database created by the present research,

examining various historical aspects, for example, the relations between the identity of judges

who adjudicated decisions regarding the conflict, and the content and result of their decision. The

findings of the present study could be compared to that of a future study of the Court’s decisions,

similar to the present one, which will be conducted on the period following 2006. Future

research will be able to utilize the database of the present research to link expressions of ethos

societal beliefs to particular judges. While the present research database does not contain such

linkages, each ethos expression found in this research could easily be associated with the

particular judges who have used that expression in their opinions. In addition, the database may

serve research into other aspects of Court decision making: Reference patterns and length of

decisions could be compared to patterns observed by previous and future studies of the Court's

published decisions (see, for example, Shachar, Harris & Gross, 1996; Shachar, Gross & Harris,

1997; Shachar, 2000; Shachar, Gross & Goldschmit, 2004)

The significance of the present research also stems from the unique role played by the ethos of

conflict in some of the Court’s most significant decisions vis-à-vis the conflict, legitimizing the

actions of the state and thereby limiting the need to use coercive mechanisms. The results

regarding the intensity of the ethos allow for a future re-evaluation of Robert Cover's critical

analysis of law as literature (Cover, 1985, see Chapter 3). Future studies will also be able to

utilize the findings of the present research to generate a more nuanced approach to the social

roles of the judiciary in societies involved in intractable conflict. For example, in Bar-Tal's

recently published book on the socio-psychological foundations and dynamics of intractable

conflict, the term ‘legitimacy’ appears ten times, yet only twice (2013, p. 174 & 176) in the

context of ethos of conflict. The findings of the present research regarding the role of legitimacy

as a function of ethos of conflict will also allow a more nuanced understanding of the nature of

judicial legitimacy to emerge. For example, the use of societal beliefs regarding the de-

legitimization of the opponent may legitimize state’s involvement in aggressive and violent

217

military actions, a link which may be overlooked without awareness of the nature of the ethos of

conflict as a conceptual framework and its legitimization capacities.

The importance of the present research also derives from the availability of a database consisting

of all Israeli Supreme Court published decisions regarding the conflict, as well as thousands of

results for many additional variables relating, for example, to expressions of collective memory,

mentions of the Holocaust and judges identities for each decision. While the present research

focused on some key aspects of the database results, future studies will be able to add to the

scholarship of the Supreme Court and its involvement in the Israeli-Palestinian conflict by

exploring additional variables not researched in the context of the present research. For example,

while researchers have noted that the term ‘occupation’ has been perceived as immoral by the

Israeli Jewish society in the context of the Occupied Palestinian Territories (Halperin, Bar-Tal,

Sharvit, Rosler & Raviv, 2010), present research results suggest the terms “occupation” ("כיבוש")

and “annexation” ("סיפוח") were widely used by the court with regard to territorial acts by the

State of Israel during the 1948 war. Except for a single mention of the term ‘occupation’ by the

court in 2003 (again, regarding the 1948 war, not the 1967 Palestinian Territories), all

expressions of both terms were found between 1948 and 1964. Future research will be able to

follow the creation of a semblance of immorality associated with the terms in recent years as

well as studying the use of the two terms by the court in relation to expressions of the ethos of

the conflict and alternative beliefs.

Finally, the significance of the present research to future studies of the judiciary stems from its

focus on obiter dicta, which has rarely been the subject of jurisprudential study. The present

research has demonstrated the vital roles undertaken by expressions of ethos of conflict societal

beliefs, which are nonetheless part of the obiter dicta of the Court decisions. The prevalence of

expressions of ethos societal beliefs and the relations described by the present research between

ethos expressions, expressions of alternative beliefs and the legal outcome offer a new rationale

for the study of obiter dicta in common law judicial systems and other judiciaries which use

detailed judicial opinions.

218

Conclusion

In one of the Supreme Court's most notable decisions, regarding the closure of Bar-Ilan Street in

Jerusalem to motor traffic on Sabbaths and Jewish holidays during hours of prayer, Chief Justice

Aharon Barak notes that administrative discretion is “deemed flawed when it is influenced by the

violence on the street.”117 The prominent use of the ethos of the conflict in decisions of political,

social or legal significance suggests that the Court, as many other Israeli intuitions,118 has been

influenced by the violent and prolonged nature of the conflict. The expansive use of the ethos of

the conflict is a symptom of the intrusive influence of violence, which could not be avoided: The

Court's use of the conflict societal beliefs is a symptom of judges’ social membership as well as

the need to legitimize the Court decisions and the actions of the state.

It is doubtful whether a judge's decision to employ ethos expressions is a conscious one:

Research has pointed to the automatic activation of the ethos by members of the Israeli Jewish

society. As members of Israeli Jewish society experience fear and other negative emotions that

they struggle to contain due to the violent and prolonged nature of the intractable conflict, they

utilize the ethos as a psychological defense mechanism, drawing its significant strength from its

pervasiveness, as societal beliefs of the ethos of conflict are shared by the majority of society

members. Further evidence that the use of the ethos by judges is not a conscious decision

emerges from present research findings regarding the predominance of several ethos clusters of

societal beliefs, which correlate with findings of previous studies of the ethos of conflict in

Israeli Jewish society. The organic fashion by which the ethos emanates from key decisions of

the Court, allows the ethos to become a powerful mechanism, instilling a sense of legitimacy for

both state actions as well as Court decisions regarding the conflict. It is doubtful whether an

attempt to instill Israeli Jewish society with an ethos of conflict could ever be so successful

without the active participation of the Supreme Court. “There are judges in Jerusalem”,

117 HCJ 5016/96 Horev V. Minister Of Transport [1997] Isrsc 51(4) 1. 118 The Present Research Complements Studies Regarding The Ethos Of The Conflict As Manifested By Other Political And Social Mechanisms As Well As In Cultural Products, Including Israeli Literature (Cohen, 1985; Ben Ezer, 1977), Mass Media (Yadgar, 2004), National Ceremonies (Arviv-Abramovich, 2004), Political Leaders’ Speeches (Rosler, 2012), Theatre And Cinema (Gertz, 1995, 1998; Urian, 1996; Shohat, 1989) Poetry (Tessler, 1999) And Even In Common Expressions Of The Hebrew Language (Tsur, 2013). The Manner In Which Educational System Used The Ethos Has Also Been Extensively Researched (E.G., Bar-Tal, 1998a And B; David, 2007; Firer, 1985; Podeh, 2002).

219

exclaimed Prime Minister Menachem Begin in the Knesset, following the Beth-El decision. The

results of the present research suggest his confidence in the Court was well founded.

While Court judges may utilize the ethos of the conflict for personal, internal reasons, given their

desire to feel part of the Israeli Jewish society and their inability to portray their society as

immoral, oppressive or unjust, the result is a powerful mechanism, seemingly removed from

mundane political considerations, so prominent in the work of the Knesset and the government.

The Court’s ability to reflect Israeli society ethos can also be perceived as a defeat for the Court,

given the claim that it is supporting democratic values and promoting human rights based the

societal ethos: ethos societal beliefs contradict and oppose human rights values and the

democratic narrative. It is doubtful whether a Court genuinely involved in the institutionalization

of the ethos of conflict will be able to promote democratic values. The prominence of ethos of

conflict societal beliefs is manifested by present research findings regarding the limited

availability of expressions of alternative beliefs. The minimal use of alternative beliefs, as

opposed to the pervasiveness of ethos societal beliefs, demonstrates how far removed Court

decisions are from providing a ‘marketplace of ideas’ necessary to indicate the existence of

freedom of expression and freedom of thought, the cornerstones of democracy. It may

conceivably contribute to limiting the views available to the Israeli Jewish public who may be

reading the decision or hearing parts of its which are quoted by the Israeli media.

Unfortunately, it seems that the Court has recently reconciled with its institutional role with

regard to the promotion of ethos of conflict beliefs: The Court official website contains the

following blatant statement in bold letters: “Judgments of the Israel Supreme Court: Fighting

Terrorism within the Law”.119 It is highly unlikely that such statement, which seems to be the

work of a “hasbara” copywriter rather than a judge, would have been possible in previous years,

when the image of the Court as an independent institution still existed. Now, the Court is

heralding its views as a vocal peddler, thereby limiting any claim to objectivity or remoteness

from current views held by Israeli political ruling parties.

119 See: Http://Elyon1.Court.Gov.Il/Verdictssearch/Englishverdictssearch.Aspx

220

It could be argued that by disseminating and even creating the ethos of conflict, the Court does

not differ from other Israeli official and non-official institutions, which use the ethos of conflict

to secure public legitimacy for their actions. To borrow Eugene O'Neill’s observation,120 the

Court’s judgments are attempts, however futile, to mend a broken society, a society which

desires to feel whole again, to gain a sense of moral goodness, However, when the highly

respected Israeli Supreme Court, the self-professed symbol of Israel’s democratic norms, utilizes

the ethos, the ramifications are graver, given the uneasy alignment between the Court's coercive

powers and the legitimacy it has attained by utilizing ethos of conflict societal beliefs.

120 “Man Is Born Broken. He Lives By Mending. The Grace Of God Is Glue” The Great God Brown, Act 4, Scene 1.

221

Bibliography

Abrams, K. & Keren, H. (2007). Law in the Cultivation of Hope, 95 California Law Review,

319-381.

……………………….. (2009). Who's Afraid of Law and the Emotions?, 94 Minnesota Law

Review, 1997-2074.

Adalah (2008). Virtual Roundtable, 45 Adalah Newsletter,

http://adalah.org/newsletter/eng/feb08/roundtable/roundtable.html

Alexander, G. J. (1984). The Illusory Protection of Human Rights by National Courts During

Periods of Emergency. 5 HRJ 1.

Alexander, J.C. (2004). Toward a theory of cultural trauma. In J.C. Alexander, R. Eyerman, B.

Giesen, N.J. Smelser & P. Sztompka (Eds.), Cultural trauma and collective identity. Berkeley,

CA: University of California Press, 1-30.

Almog, O. (2004). Farwell to 'Srulik' - Changing values among the Israeli elite. Haifa: Haifa

University and Zmora-Bitan Publication (in Hebrew).

Altemeyer, B. (1988). Enemies of freedom: understanding Right-wing authoritarianism. San

Francisco: Jossey-Bass.

Althusser, L. (1971). Ideology and Ideological State Apparatuses, in Lenin and Philosophy and

other Essays, trans. Brewster, B. 121-176.

Arian, A. (1995). Security Threatened: Surveying Israeli Opinion on Peace and War, Cambridge:

Cambridge University Press.

222

Arian, A. (2012). A portrait of Israeli Jews: Beliefs, observance, and values of Israeli Jews, 2009,

Jerusalem, Israel: The Israel Democracy Institute and the AVI CHAI– Israel Foundation.

Arviv-Abramovich, R. (2004). State Ceremonies as Mechanism for Inculcating Ethos of Conflict

in Times of Intractable Conflict: The Israeli Case. Master's Thesis submitted to Tel Aviv

University (in Hebrew).

…………………. (2010). State ceremonies as mechanism for inculcating ethos of conflict in

times of intractable conflict: The Israeli case. Master's Thesis submitted to Tel Aviv University

(in Hebrew).

Ashmore, R.D., Jussim, L., & Wilder, D. (Eds.),(2001). Social identity, intergroup conflict, and

conflict reduction. Oxford: Oxford University Press.

Avineri, S. (1981). The Making of Modern Zionism: The Intellectual Origins of the Jewish State,

London: Basic Books.

Azar, E. E., Jureidini, P., & McLaurin, R. (1978). Protracted Social Conflict: Theory and

Practice in the Middle East. Journal of Palestine Studies, 8 (1), 41-60.

Azar, E.E. (1990). The Management of Protracted Social Conflict. Hampshire, UK.

Barak, A. (1992-3). The Constitutional Revolution: Protected Fundamental Rights, 1 Mishpat u-

Mimshal, 9–35 (in Hebrew).

………….. (1989). Judicial Discretion, Yale University Press.

…………… (2002). Forward: A Judge on Judging: The Role of a Supreme Court in a

Democracy, 116 Harvard Law Review, 16.

………… (2003). The Supreme Court as a Constitutional Court, 6 Mishpat u-Mimshal, 315

223

Barak, A. (2006a). The Judge in a Democracy, Princeton University Press.

Barak, A. (2006b). Human Rights in Israel, 39 Isr. L. Rev. 12-34.

………… (2009). The Former President of the Supreme Court, Aharon Barak, Aley Mishpat,

131-146 (In Hebrew).

Barak-Erez, D. (1995). From an Unwritten to a Written Constitution: The Israeli Challenge in

American Perspective, 26 Colum. Human Rights Law Review, 309.

……………... (2009). Broadening the Scope of Judicial Review in Israel: Between Activism and

Restraint, 3 Indian Journal of Constitutional Law, 118-137.

…………….. (2011). Judicial Conversations and Comparative Law: The Case of Non-

Hegemonic Countries, 47 Tulsa Law Review, 405-436.

Bar-On, M. (1996). In Pursuit of Peace: A History of the Israeli Peace Movement, Washington:

United States Institute of Peace Press.

Bar-On, D. (1997). Israeli Society between the Culture of Death and the Culture of Life. Israel

Studies, 2, 88-112.

…………. (2000). Cultural Identity and Demonization of the Relevant Other: Lessons from the

Palestinian-Israeli Conflict, in Shalev, A. Y., Yehuda, R. & McFarlane, A. C. (eds.),

International Handbook of Human Response to Trauma, New York: Springer, 115–125.

………….. (2008). The Others within Us: Constructing Jewish-Israeli identity. Cambridge:

Cambridge University Press.

224

Bar-On, D. Litvak-Hirsh, T. & Othman, R. (2007). Within-Group Variance as a Facilitator of

Dialogue: A Jewish-Arab Israeli Encounter Group Focused on Family Stories, Journal of

International Cooperation in Education, 10, 33.

Bar-Tal, D. (1988). Delegitimizing Relations between Israeli Jews and Palestinians: A Social

Psychological Analysis, in Hofman, J. E. (ed.), Arab-Jewish Relations in Israel: A Quest in

Human Understanding, Bristol: Wyndham Hall Press, 217–248;

Bar-Tal, D. (1989). Delegitimization: The extreme case of stereotyping and prejudice. In D. Bar-

Tal, C.F. Graumann, A.W. Kruglanski & W. Stroebe (Eds.), Stereotyping and prejudice:

Changing conceptions (pp. 169-182). New York: Springer Verlag.

Bar-Tal, D. (1990). Causes and consequences of delegitimization: Models of conflict and

ethnocentrism. Journal of Social Issues, 46 (1), 65-81.

Bar-Tal, D. (1998a). Societal Beliefs in Times of Intractable Conflict: The Israeli Case,

International Journal of Conflict Management, 9, 22-50.

Bar-Tal, D. (1998b). The rocky road towards peace: Societal beliefs functional to intractable

conflict in Israeli school textbooks. Journal of Peace Research, 35, 723-742.

Bar-Tal, D. (2000). Shared Beliefs in a Society: Social Psychological Analysis. Thousand Oaks,

California, Sage.

Bar-Tal, D. (2001). Why Does Fear Override Hope in Societies Engulfed by Intractable

Conflicts, as It Does in the Israeli Society? Political Psychology, 22,601.

Bar-Tal, D. (2002). From Intractable Conflict through Conflict Resolution to Reconciliation:

Psychological Analysis, 21 Political Psychology, 351–365.

225

Bar-Tal, D. (2003). Collective Memory of Physical Violence: Its contribution to the Culture of

Violence, in The Role of Memory in Ethnic Conflicts, Cairns, E., & Roe, M. D., editors,

Palgrave, 77-93.

Bar-Tal, D. (2004). The Necessity of Observing Real Life Situations: Palestinian-Israeli

Violence as a Laboratory for Learning about Social Behavior, European Journal of Social

Psychology, 34, 677-70.

Bar-Tal, D. (2007a). Sociopsychological Foundations of Intractable Conflicts, American

Behavioral Scientist 50, 1430-1453.

Bar-Tal, D. (2007b). Living with the Conflict, Socio-Psychological Analysis of the Jewish

Society in Israel, Jerusalem: Carmel (in Hebrew).

Bar-Tal, D. (2011). Introduction: Conflicts and social psychology. In Bar-Tal, D. (Ed.),

Intergroup conflicts and their resolution: Social psychological perspective. New York:

Psychology Press, 1-38.

Bar-Tal, D. (2013). Intractable Conflicts: Socio-Psychological Foundations and Dynamics,

Cambridge University Press.

Bar-Tal, D. & Antebi, D. (1992). Siege Mentality in Israel, International Journal of Intercultural

Relations, 16, 251-275.

Bar-Tal, D., Chernyak-Hai, L., Schori, N. & Gundar, A. (2009). A Sense of Self-perceived

Collective Victimhood in Intractable Conflicts. 91 International Review of the Red Cross, 229-

258.

Bar-Tal, D. & Halperin, E. (2011). Socio-psychological Barriers to Conflict Resolution, in Bar-

Tal, D. (Ed.), Intergroup Conflicts and their Resolution: Social Psychological Perspective, New

York: Psychology Press, 217-240.

226

………………………….. (2013). The Israeli-Jewish Society: Socio-Psychological Barriers for

Peacemaking and Overcoming them, The Tami Steinmetz Center for Peace Research.

Bar-Tal, D., Halperin, E. & Eichende Rivera, J. (2007). Collective Emotions in Conflict

Situations: Societal Implications, Journal of Social Issues, 63, No. 2, 2007, pp. 441—460.

Bar-Tal, D., Halperin, E & Oren, N. (2010). Socio-psychological barriers to peacemaking: The

case of the Israeli Jewish society. Social Issues and Social Policy Review, 4, 63-109.

Bar-Tal, D., & Hammack, P. L. (2012). Conflict, Delegitimization, and Violence. In L. R. Tropp

(Ed.), The Oxford handbook of intergroup conflict, New York: Oxford University Press, 29-52.

Bar-Tal, D. Jacobson, D. & Klieman, A. (1998), Security Concerns: Insights from the Israeli

Experience, Stamford: JAI Press.

Bar-Tal, D., & Oren, N. (2000). Ethos as an expression of identity: Its changes in transition from

conflict to peace in the Israeli case (discussion paper No. 83). Jerusalem: The Leonard Davis

Institute for International Relations: The Hebrew University of Jerusalem.

………………….. (2011). Conflict, Ethos of, The Encyclopedia of Peace Psychology, Christie,

D. J., ed., Wiley Online Library.

Bar-Tal, D., Oren, N., & Nets-Zehngut, R. (2013). Sociopsychological analysis of conflict-

supporting narratives: A general framework Journal of Peace Research 51, 662-675.

Bar-Tal, D., & Salomon, G. (2006). Israeli-Jewish Narratives of the Israeli-Palestinian Conflict:

Evolvement, Contents, Functions and Consequences. In Israeli and Palestinian narratives of

conflict: History's Double Helix, Rotberg R.I. Ed., Bloonington: Indiana University Press, 19-46.

227

Bar-Tal, D., Sharvit, K., Halperin, E. & Zafran, A. (2012). Ethos of conflict: The concept and its

measurement. Peace & Conflict. Journal of Peace Psychology 18, 40-61.

Bar-Tal, D., & Staub, E. (Eds.) (1997). Patriotism in the life of individuals and nations. Chicago:

Nelson-Hall.

Bar-Tal, D., & Teichman, Y. (2005). Stereotype and prejudice in conflict: Representations of

Arabs in Israeli Jewish society. Cambridge: Cambridge University Press.

Barzilai, G. (1996). Wars, Internal Conflicts, and Political Order: A Jewish Democracy in the

Middle East, SUNY Press.

……………. (1998). "The Argument of "National Security" in Politics and Jurisprudence," in

Security Concerns: Insights from the Israeli Experience, Greenwich, Bar-Tal, D., Jacobson, D. &

Klieman, A., eds., 243-265.

………….. (1999). Courts as Hegemonic Institutions, The Israeli Supreme Court in Comparative

Perspective, in Israel: The Dynamics of Change and Continuity, Levi-Faur, D., Sheffer, G. &

Vogel, D, Eds., Frank Cass, London, 15-33.

……………. (2000). Fantasies of Liberalism and Liberal Jurisprudence: State Law, Politics, and

the Israeli-Arab-Palestinian Community, 34 Israel Law Review, 425-451.

Barzilai, G., & Inbar, E. (1996). The use of force: Israel, public opinion and military options.

Armed Forces & Society, 23(1), 48-80.

Barzilai, G., Yuchtman-Yaar, E. & Segal, Z. (1994). The Israeli Supreme Court and the Israeli

Public, Papyrus (in Hebrew).

228

Bash, T., Ginbar, Y. & Felner, E. (1993). Deportation of Palestinians from the Occupied

Territories and the Mass Deportation of December 1992, B’Tselem – The Israeli Information

Center for Human Rights in the Occupied Territories.

Baum, I. (2008). In the Digital Age of Lawyering the Official Publication of Decisions by the

Supreme Court has Vanished – Now it Returns, The Marker (in Hebrew),

http://www.themarker.com/law/1.480880

Baumeister, R. F., & Hastings, S. (1997). Distortions of collective memory: How groups flatter

and deceive themselves. In J. W. Pennebaker, D. Paez, & B. Rimé (Eds.), Collective memory of

political events: Social psychological perspective. (pp. 277–293). Mahwah, NJ: Erlbaum.

Baumeister, R. F., & Leary, M. R. (1995). The need to belong: Desire for interpersonal

attachments as a fundamental human motivation. Psychological Bulletin, 117(3), 497-529.

Bäuml, Y. (2007). A Blue and White Shadow, Pardes (in Hebrew).

…………. (2011). MAPAI Committee for Arab Affairs – The Steering Committee for

Construction of Establishment Policy towards Israeli Arabs, 1958–68, 47 Middle Eastern

Studies, 413-433.

Ben Ezer, E. (1977). War and Siege in Israeli Literature (1948-1967). Jerusalem Quarterly, 2, 94-

112.

Ben-Amos, A. & Bar-Tal, D. (2004), Patriotism; Homeland Love, Tel Aviv, (in Hebrew).

Ben-Eliezer, U. (1998). The Making of Israeli Militarism. Bloomington, IN: Indiana University

Press.

………………. (2001). From a nation in arms to a postmodern army: Military politics in “new

times” Israel. Democratic Culture: Israel and Its Army, 4-5, 55-98 (in Hebrew).

229

Ben-Ezer, E. (1997). The Shadow of the Orchards and the Volcano: Conversations Regarding the

Reflection of the Arab Question and the Image of the Arab in Hebrew Literature in Eretz Israel

since the end of the 19th Century till the Present Days, Tel Aviv: Khamol (In Hebrew).

Ben-Gurion, D. (1969). Israel: Years of Challenge, Tel Aviv, (in Hebrew).

Benjamin, W. (1968). Illuminations: Essays and Reflections, ed. Arendt, H. translation by Harry

Zohn, Schocken.

Ben-Naftali, O. & Shany, Y. (2003-2004). Living in Denial: The Application of Human Rights

in the Occupied Territories, 37 Israel Law Review, 17-118.

Ben-Naftali, O. Gross, A. & Michaeli, K. (2005). Illegal Occupation: The Framing of the

Occupied Palestinian Territory, 23 Berkeley Journal of International Law, 551–614.

Ben-Porat, G. & Mizrahi, S. (2005). Political culture, alternative politics and foreign policy: The

case of Israel, Policy Sciences 38, 177-194.

Ben-Shemesh, Y. (2010). Individualism and Post-Nationalism in the Qa’adan Case: a Reply to

Yousef Jabareen, 3 Law & Social Change (Ma'asei Mishpat), 191-199 (in Hebrew).

Benvenisti, E. (1989). Legal Dualism: The Absorption of the Occupied Territories into Israel,

Westview Press.

……………… (1993). Judicial Review of Deportation Orders, 1 Mishpat U-mimshal 441-470

(in Hebrew).

…………….. (1996). Judicial Review of Administrative Action in the Territories Occupied in

1967, in Public Law in Israel, Itzhak Zamir & Allen Zysblat eds., 371.

230

………………. (2003). Case Review: Ajuri et al. v. IDF Commander in the West Bank et. al., 9

European Public Law 481.

……………… (2012). The International Law of Occupation (Second Edition). Oxford

University Press.

Ben-Yair, M. (2002). The Seventh Day of the War, Ha'aretz (in Hebrew).

Ben-Zvi, A. (2005). The Limits of Israel's Democracy in the Shadow of Security, 1 Taiwan

Journal of Democracy, 1–23.

Bick, E. (2001). The Shas Phenomenon and the Religious Parties in the 1999 Elections, in Israel

at the Polls, 1999, Elazar, D. J. & Mollovand, M. B., London: Frank Cass and Co., 55-100.

Bilu, Y. (1994). The Image of the Enemy: Cracks in the Wall of Hatred, Palestine-Israeli Journal,

IV, 24–28.

……….. (2004). The sanctification of space in Israel: Civil religion and folk Judaism. In U.

Rebhun & C. I. Waxman (Eds.), Jews in Israel: Contemporary Social and Cultural Patterns (pp.

371–393). Hanover, NH: Brandeis University Press.

Bion, W. R. (1962a). A theory of thinking, International Journal of Psycho-Analysis, 43, 306-

310.

…………… (1962b). Learning from Experience London: William Heinemann.

Biran, H. (2007). The Dreaming Soldier (Unpublished manuscript).

Bisharat, G. (2008). Virtual Roundtable, 45 Adalah Newsletter,

http://adalah.org/newsletter/eng/feb08/roundtable/bisharat.html

231

Bork, R. H. (1990). The Tempting of America: The Political Seduction of the Law, Touchstone,

New York, NY, 349.

……………. (2007). Barak’s Rule, Review of The Judge in a Democracy, 27 Azure,

http://azure.org.il/include/print.php?id=34.

Boulanger, G. (2002). The Cost of Survival: Psychoanalysis and Adult Onset Trauma,

Contemporary Psychoanalysis, 38:17-44.

Bracha, O. (1998). Unfortunate or Perilous: The Infiltrators, the Law and the Supreme Court

1948-1954, 21 Tel-Aviv University Law Review, 333 (in Hebrew).

Brennan, Jr. W. J. (2008). The Quest to Develop a Jurisprudence of Civil Liberties in Times

of Security Crises, 18 Israel Yearbook on Human Rights 11.

Butler, P. (2004). Human Rights and Parliamentary Sovereignty in New Zealand, 35 Victoria

University of Wellington, 341-366.

Carmi, G. E. (2005). A Constitutional Court in the Absence of a Formal Constitution? On the

Ramifications of Appointing the Israeli Supreme Court as the Only Tribunal for Judicial Review,

21 Connecticut Journal of International Law, 67-91.

Cassese, A. (2007). On Some Merits of the Israeli Judgment on Targeted Killings, 5 Journal of

International Criminal Justice, 339-345

Cash, J. D. (1996). Identity, Ideology and Conflict: The Structuration of Politics in Northern

Ireland. Cambridge: Cambridge University Press.

Cavanaugh, K. (2008). Virtual Roundtable, 45 Adalah Newsletter,

http://adalah.org/newsletter/eng/feb08/roundtable/Cavanaugh.html

232

Chazan, N. (2006). Peace action and conflict resolution: An Israeli-Palestinian exploration, in

Arab-Jewish Relations: From Conflict to Resolution?, ed. E. Podeh, A. Kaufman, and M. Maoz,

Brighton, UK: Sussex Academic Press, 283-318.

Cheung-Blunden, V., & Blunden, B. (2008). The Emotional Construal of War: Anger, Fear and

Other Negative Emotions, 14 Peace and Conflict: Journal of Peace Psychology, 123–150.

Chouchane, S. (2009). The judicialization of Israeli Military Ethics, 20 Bulletin du Centre de

Recherche Français de Jérusalem.

Cohen, A. (1985). An Ugly Face in the Mirror: National Stereotypes in Hebrew Children’s

Literature. Tel Aviv: Reshafim (in Hebrew).

Cohen, A. & Shany, Y. (2007). A Development of Modest Proportions: The Application of the

Principle of Proportionality in the Targeted Killings Case, 5 Journal of International Criminal

Justice, 310-321.

Cohen, E. H. (2010). Hora’at Ha-shoah be-batei sefer mamlakhtiyim be-Israel: Mekhkar

khinukhi 2007–2009 [Teaching the Holocaust in Israeli State Schools: An educational study

2007–2009. Bar Ilan University, Israel. http://education.biu.ac.il/files/education/%201_.pdf (In

Hebrew).

Cohen, R. (1979). Threat Perception in International Crisis, Madison, University of Wisconsin

Press.

Cohen, S. A. (1995). The Israeli Defense Forces (IDF): From a “people's army” to a

“professional military” – Causes and implications. Armed Forces and Society, 21, 237-254.

Cohn, H. (1993). Deportation According to Law, 1 Mishpat Umimshal, 471-476 (in Hebrew).

233

Cole, D. (2003). Judging the Next Emergency: Judicial Review and Individual Rights in Times

of Crisis, 101 Michigan Law Review, 2565-2595.

Coleman, P. T. (2000). Intractable Conflict, in Morton Deutsch and Peter T. Coleman, eds., The

Handbook of Conflict Resolution: Theory and Practice San Francisco: Jossey-Bass Publishers,

428-450.

………………… (2006). Intractable Conflict. In M. Deutsch, P. T. Coleman, & E. C. Marcus

(Eds.), The Handbook of Conflict Resolution: Theory and practice (second edition, pp. 533-559).

San-Francisco: Jossey-Bass.

Connerton, P., (1989). How societies remember. New York: Cambridge University Press.

Coutant, D. K., Worchel, S. & Hanza, M. (2010). In, Intergroup Conflicts and Their Resolution:

A Social Psychological Perspective, Bar-Tal, D., ed., Psychology Press.

Cover, R. (1986). Violence and the Word, 5 Yale Law Journal, 1601-1629.

David, O. (2007). The crystallization and transformations of Jewish-Israeli identity: A study of

identity reflection in Hebrew readers of the 20th century. Unpublished doctoral dissertation, Tel

Aviv University, Israel. (in Hebrew)

David, O., & Bar-Tal, D. (2009). A socio-psychological conception of collective identity: The

case of national identity. 13 Personality and Social Psychology Review, 354-379.

Davidov, G., & Reichman, A. (2010). Prolonged Armed Conflict and Diminished Deference to

the Military: Lessons from Israel, 35 Law & Social Inquiry 919-956.

Dayanim, B. (1994). The Israeli Supreme Court and the Deportations of Palestinians: The

Interaction of Law and Legitimacy, 30 Stanford Journal of International Law, 115.

234

Dinstein, Y. (1974). The Judgment in the Rafiah Approach. Case, 3 Tel Aviv University Law

Review, 934-941. (in Hebrew).

………….. (1988). Deportations from Occupied Territories, 13 Tel Aviv University Law

Review, 403 (in Hebrew).

Domb, R. (1982). The Arab in Hebrew Prose, London: Vallentine Mitchell.

Donagan, A. (1979). The Theory of Morality, University of Chicago Press.

Dor, D. (2004). Intifada hits the headlines: How the Israeli press misreported the outbreak of the

second Palestinian uprising, Bloomington Indiana University.

………. (2006). Is there anything we might call dissent in Israel? (And, if there is, why isn’t

there?), Critical Inquiry 32, 278-287.

Dorner, D. (2006). Farewell to the Supreme Court, 26 Mechkarei Mishpat, 425-429 (in Hebrew).

Dotan, Y. (1999). Judicial Rhetoric, Government Lawyers and Human Rights: The Case of the

High Court of Justice during the Intifada, Law and Society Rev. 33, 319.

………... (2000). Does Israel Need a Constitutional Court?" 5 Mishpat Umimshal 117-163 (in

Hebrew)

……….. (2003). Pre-Petitions and Constitutional Dilemmas Regarding the Role of the Attorney

General Office, 7 Mishpat u-Mmimshal159-205 (in Hebrew)

Dotan, Y., & Hofnung, M. (2001). Interest Groups in the Israeli High Court of Justice:

Measuring Success in Litigation and in Out-of-Court Settlements, 23 Law and Policy, 1–27.

235

…………………………….. (2005). Legal Defeats — Political Wins: Why Do Elected

Representatives Go to Court?, 38 Comparative Political Studies 75.

Doty, R. M., Peterson, B. E. & Winter, D. G. (1991). Threat and authoritarianism in the United

States, 1978-1987. Journal of Personality and Social Psychology 61: 629-640.

Duckitt, J. & Fisher, K. (2003). The impact of social threat on worldview and ideological

attitudes, Political Psychology 24: 199–222.

Elbaz, S., & Bar-Tal, D. (In press). Dissemination of culture of conflict in the Israeli mass media:

The wars in Lebanon as a case study. Communication Review

Elon, A. (1971) The Israelis : Founders and Sons, London: Faber & Faber.

Epstein, A. L. (1978). Ethos and Identity: Three Studies in Ethnicity. London: Tavistock.

Farrel, B. (2003). Israeli Demolitions of Palestinian Houses as a Punitive Measure: Application

of International Law to Regulation 119, 28 Brook J. Int'l L. 871-936.

Feldman, A. (1995). Jewish and Democratic State: Space without Place, Time without Duration,

19 Iyunei Mishpat [Legal Studies] 717-727. [in Hebrew].

Feldman, J. (2008). Between the Death Pits and the Flag: Youth Voyages to Holocaust Poland

and the Performance of Israeli National Identity. New York, NY: Berghahn Press.

Feldman, S. Y. (1992). Whose Story is it Anyway? Ideology and Psychology in the

Representation of the Shoah in Israeli literature. In S. Friedlander (Ed.), Probing the Limits of

Representation: Nazism and the ‘Final Solution’ (pp. 223–239). Cambridge, MA: Harvard

University Press.

Feldman, Y. & Blau, U. (2009). Consent and advise, Ha’aretz.

236

Festinger, L. (1950). Informal social communication. Psychological Review, 57, 271-282.

Firer, R. (1985). The Agents of Zionist Education. Tel Aviv: Sifriyat Poalim (in Hebrew).

Flemming, R. B., & B. D. Wood (1997). “The Public and the Supreme Court: Individual Justice

Responsiveness to American Policy Moods,” 41(2) American J. of Political Science 468.

Ford, S. (2012). A Social Psychology Model of the Perceived Legitimacy of International

Criminal Courts: Implications for the Success of Transitional Justice Mechanisms, 45 Vanderbilt

journal of transnational law, 405-476.

Fowler, T. L. (2000). Of Moons, Thongs, Holdings and Dicta: State v. Fly and the Rule of Law,"

22 Campbell Law Review, 253-315.

Freud, S. (1914). Remembering, Repeating and Working-Through (Further Recommendations

on the Technique of Psycho-Analysis II). The Standard Edition of the Complete Psychological

Works of Sigmund Freud, Volume XII (1911-1913): The Case of Schreber, Papers on Technique

and Other Works, 145-156.

Friedlander, S. (1992). Trauma, Transference and "Working through" in Writing the History of

the "Shoah", 4 History and Memory, 39-59.

Friedman-Peleg, K. & Bilu, Y. (2011). From PTSD to ''National Trauma'': The Case of the Israel

Trauma Center for Victims of Terror and War, Transcultural Psychiatry 2011 48: 416.

Friling, D. (2012) “Having It All”: Cognitive Polyphasia as Preserving a Complex Reality: The

Israeli Case Papers on Social Representations, 21, 2.1-2.24.

Gaff, A. (1993). An Illusion of Legality: A Legal Analysis of Israel's Mass Deportation of

Palestinians on 17 December 1992, Al-Haq.

237

Gallese, V. & Goldman, A. (1998). Mirror Neurons and the Simulation Theory of Mind-reading,

Trends in Cognitive Sciences, 12, 493-501.

Galligan, D. J. (1986). Discretionary Powers: A Legal Study of Official Discretion. Oxford:

Clarendon Press.

Gavison, R. (1998) The Constitutional Revolution: A Reality or a Self-Fulfilling Prophecy?, The

Israel Democracy Institute, Jerusalem (in Hebrew).

Gavison, R., Kremnitzer, M. & Dotan, Y. (2000). Judicial Activism – Pros and Cons: The Place

of the Supreme Court in Israeli Society, Jerusalem, Magnes Press (in Hebrew).

Gayer, C. Landman, S. Halperin, E. & Bar-Tal, D. (2009). Overcoming psychological barriers to

peaceful conflict resolution: The role of arguments about losses. Journal of Conflict Resolution

53, 951–975.

Gazit, S. (2003). Trapped Fools: Thirty Years of Israeli Policy in the Territories, Frank Cass,

London, Portland, Orego (Translated, Sapir, S.).

Gazzola, V. & Keysers, C. (2006). Empathy and the Somatotopic Auditory Mirror System in

Humans, 18 Current Biology, 1824-29.

Geertz, C. (1973). The interpretation of cultures: Selected essays. New York: Basic Books.

Gelvin, J. L. (2005). The Israel-Palestine Conflict: One Hundred Years of War. Cambridge

University Press, New York, NY.

Gerner, D. (1991). One Land, Two Peoples: The Conflict Over Palestine, Boulder, CO:

Westview.

238

Gertz, N. (1995). Captive of a dream: National myths in Israeli culture. Tel Aviv: Am Oved

(in Hebrew).

………… (1998). From destruction to redemption: Israeli literature and cinema 1960-1990. In

D. Bar-Tal, D. Jacobson, & A. Klieman (Eds.), Concerned with security: Learning from the

Israeli experience. Greenwich, CT: JAI.

……….. (2004). Mak’hela Aheret [Holocaust survivors, aliens and others in Israeli cinema and

literature]. Tel Aviv, Israel: Am Oved.

Gil, M. (1983). A History of Palestine, 634-1099 Cambridge University Press.

Giles, M. W., B. Blackstone, & R. L. Vining (2008). The Supreme Court in American

Democracy: Unraveling the Linkages Between Public Opinion and Judicial Decision Making, 70

Journal of Politics 293.

Glickman, A. (2009). Aharon Barak Accuses Defense Establishment of Misleading High Court,

Ynet news.

Glover, N. (2009). Psychoanalytic Aesthetics: An Introduction to the British School, Karnac

Books, London.

Goertz, G., & Diehl, P. F. (1993). Enduring Rivalries: Theoretical Constructs and Empirical

Patterns, International Studies Quarterly, 37, 147-171.

Golan, G. (2007). Youth journalism during Israeli Wars: Comparative examination on the basis

of the theory of ethos of conflict. Master Thesis, Tel Aviv University (in Hebrew).

Gopher, U. (2006). Antecedents to the ethos of conflict in the Israeli-Jewish society.

Unpublished master's thesis, Tel Aviv University, Tel Aviv (in Hebrew).

239

Gorali, M. (2003). Legality is in the eye of the beholder, http://www.haaretz.com/print-

edition/business/legality-is-in-the-eye-of-the-beholder-1.101181 (in Hebrew).

Gordon , S. T. (1990). Social structural effects on emotions. In T. D. Kemper (Ed.), Research

agendas in the sociology of emotions (pp. 145-179). Albany, NY.

Gross, A. M. (2004). The Constitution, Reconciliation, and Transitional Justice: Lessons from

South Africa and Israel, 40 Stan. J Int'l L. 47.

……………… (2007). Human Proportions: Are Human Rights the Emperor’s New Clothes of

the International Law of Occupation?, 18 EUR. J. INT’L L. 1-35.

Gross, O. & Ní Aoláin, F. (2006). Law in Times of Crisis: Emergency Powers in Theory and

Practice, Cambridge University Press.

Gross, Z. (2011). A Typology for the Development of Holocaust Education Scholarship: Coping

with a National Trauma, Curriculum and Teaching, 26, pp. 73-86.

Gutwein, D. (2008). From a “Constitutional Revolution” to a “Counterrevolution”: the Legal

Logic of the Privatization Regime in Israel, Ma'asei Mishpat, The Tel Aviv University Journal of

Law and Social Change, 47-62 (in Hebrew).

Hadari, Y. (1998). Messianic Utopia and its Opponents in Israeli Public Thought Between the

Years 1955-1975. Unpublished PhD Thesis submitted for Doctor of Philosophy to the Senate of

Tel Aviv University (in Hebrew).

Hadjipavlou, M. (2007) The Cyprus conflict: Root causes and implications for peace building, 44

Journal of Peace Research,349–365.

240

Halperin, E. (2011). Emotional barriers to peace: Negative emotions and public opinion about

the peace process in the Middle East. Peace and Conflict: Journal of Peace Psychology, 17, 22–

45.

Halperin, E. & Bar-Tal, D. (2007). The fall of the peace camp in Israel: The influence of Prime

Minister Ehud Barak on Israeli public opinion: July 2000–February 2001, Conflict &

Communication Online 6.

…………………………… (2011). Socio-psychological barriers to peace making: An empirical

examination within the Israeli Jewish society. Journal of Peace Research, 48, 637–651.

Halperin, E., Bar-Tal, D., Sharvit, K., Rosler, N. & Raviv, A. (2010). Socio-psychological

implications for an occupying society: The case of Israel. Journal of Peace Research. 47(1), 59-

70.

Halperin, E., Sharvit, K., & Gross, J. J. (2011). Emotion and emotion regulation in conflicts. In

D. Bar-Tal (Ed.), Intergroup conflicts and their resolution: Social psychological perspective,

New York, NY: Psychology Press, 83–103.

Hamilton, A. (1788). The Federalist No. 78, The Judiciary Department, Independent Journal.

Hammack, P. L. (2008). Narrating Hyphenated Selves: Intergroup Contact and Configurations of

Identity Among Young Palestinian Citizens of Israel, 34 International Journal of Intercultural

Relations, 315-428.

………………. (2010). Narrative and the Politics of Identity: The Cultural Psychology of Israeli

and Palestinian Youth, Oxford University Press.

Har Zahav, R. (1993). Interview with the President of the Supreme Court, Meir Shamgar, 1

Hamispat, 1-13 (in Hebrew).

241

Hareven, A. (1983). Victimization: Some Comments by an Israeli, 4 Political Psychology, 145–

155.

Harkabi, Y. (1977). Arab Strategies and Israel’s Response, New York: Free Press.

Harpaz, G. & Shani, Y. (2010). The Israeli Supreme Court and the Incremental Expansion of the

Scope of Discretion under Belligerent Occupation Law, 43 Israel Law Review, 514-550.

Harris, R. (2001). Arab Politics in a Jewish State: El - Ard Movement and the Supreme Court, 10

Plilim, The Multi-Disciplinary Journal of Public Law, Society and Culture, 107 - 155 (in

Hebrew).

………… (2004). Constitutional Law of Israel - A Case Study in the Banning of Political

Parties: The Pan-Arab Movement El Ard and the Israeli Supreme Court, bepress Legal Series

349.

Harris. G. T. (2008). Human Rights, Israel, and the Political Realities of Occupation, 41 Israel

Law Review, 87-174

Henckaerts, J. M. (1995). Mass Expulsion in Modern International Law and Practice, Kluwer

Law International, The Netherlands.

Herman, J. (1997). Trauma and Recovery: The Aftermath of Violence - from Domestic Abuse to

Political Terror, Basic Books.

Hermann, T. (2007). Changes in Israel’s official security policy and in the attitudes of the Israeli

Jewish public toward the management of the Israeli-Palestinian conflict (2000 - 2004), in Israeli-

Palestinian conflict: From conflict resolution to conflict management, ed. Y. Bar-Siman-Tov

(New York: Palgrave Macmillan).

242

…………... (2009). The Israeli peace movement: A shattered dream, Cambridge: Cambridge

University Press.

Herman, T. & Yaar, E. (2004). Peace Index. Tel Aviv University: Steinmetz Institute.

Hermann, T. Atmor, N., Heller, E. & Lebel, Y. (2012). The Israeli Democracy Index 2012, The

Israel Democracy Institute (in Hebrew).

Hirschl, R. (2004). Towards Juristocracy: The Origins and Consequences of The New

Constitutionalism (2004), Harvard University Press.

………….. (2010). Constitutional Theocracy, Harvard University Press.

Hirshberg, M.S. (1993). The self-perpetuating national self-image: Cognitive biases in

perceptions of international interventions. Political Psychology, 14 (1), 77-98.

Hoffer, E. (1951). The True Believer. Thoughts on the Nature of Mass Movements. New York:

Harper & Row.

Hofman, J. E. (1970). The Meaning of Being a Jew in Israel: An Analysis of Ethnic Identity,

Journal of Personality and Social Psychology, XV, 196–202.

Hofnung, M. (1999). Israeli Constitutional Politics: The Fragility of Impartiality, 5 Israel Affairs

34-54.

Hofnung, M. & Weinshall Margel, K. (2010). Judicial Setbacks, Material Gains: Terror

Litigation at the Israeli High Court of Justice, Journal of Empirical Legal Studies 7, 664–692.

………………………………………. (2011). Judicial Rejection as Substantial Relief: The Israel

Supreme Court and the 'War on Terror’, in Courts and Terrorism: Nine Nations Balance Rights

243

and Security, Mary L. Volcansek, John F. Stack, Jr., editors. Cambridge University Press: New

York, 150-168.

Holt, R. R., & Silverstein, B. (1989). On the psychology of enemy images: Introduction and

overview. Journal of Social Issues, 45(2), 1-11.

Horowitz, D. (1984). Israeli Perception of National Security (1948-1972). In B. Neuberger (Ed.),

Diplomacy and confrontation: Selected issues in Israel’s foreign relations, 1948-1978 (pp. 104-

148). Tel Aviv: Everyman’s University (in Hebrew).

…………….. (1993). The Israeli Concept of National Security, in Yaniv, A. (ed.), National

Security and Democracy in Israel, London: Lynne Rienner, 11–53.

Horowitz, D. (2000). Ethnic Groups in Conflict. Berkeley: University of California Press.

Huddy, L., Feldman, S., & Cassese, E. (2007). On the distinct political effects of anxiety and

anger. In A. Crigler, M. MacKuen, G. M. & Neuman, W. R. (Eds.), The affect effect: The

dynamics of emotion in political thinking and behavior (pp. 202–230). Chicago, IL: University

of Chicago Press.

Human Sciences Research Council of South Africa (2009). Occupation, Colonialism, Apartheid:

A re-assessment of Israel’s practices in the occupied Palestinian territories under international

law, Middle East Project of the Human Sciences Research Council of South Africa, Tilley, V.,

editor.

Iacoboni, M., Woods, R. P., Brass, M., Bekkering, H., Mazziotta, J. C. and Rizzolatti, G. (1999).

Cortical mechanisms of human imitation, Science, 286, 2526-28.

Inbar, E. & Goldberg, G. (1990). Is Israel's political elite becoming more hawkish?, International

Journal 45, 631-660.

244

Izenberg, D. (2009). Three New Supreme Court Justices Appointed, The Jerusalem Post.

Jabareen, H. (2001). The Future of Arab Citizenship in Israel: Jewish-Zionist Time in a Place

with No Palestinian Memory, 6 Mishpat Umimshal, 53-86. [in Hebrew]

Jabbi, M., Swarta, M. & Keysers, C. (2007). Empathy for Positive and Negative Emotions in the

Gustatory Cortex, NeuroImage, 34, 1744-53.

Jacoby, R. (1975). Social Amnesia. Boston, MA: Beacon Press.

Jacques, M. (2012). Armed Conflict and Displacement: The Protection of Refugees and

Displaced Persons under International Humanitarian Law, Cambridge University Press.

Janis, I. L. (1981). Victims of groupthink: A psychological study of foreign-policy decisions and

fiascoes. Oxford, England: Houghton Mifflin.

Jaspal, R. & Yampolsky, M. A. (2011). Social representations of the Holocaust and Jewish

Israeli identity construction: insights from identity process theory, Social Identities, Vol. 17, No.

2, March 2011, 201-224

Jaspal, R., & Cinnirella, M. (2012). The Construction of Ethnic Identity: Insights from Identity

Process Theory. Ethnicities vol. 12 no. 5, 503-530.

Jervis, R. (1976) Perception and Misperception in International Politics, Princeton: Princeton

University Press.

…………. (1996). Social Identity. London: Routledge.

Jetten, J., & Hornsey, M. J. (Eds.) (2011). Rebels in groups: Dissent, deviance, difference, and

defiance. NY: Wiley-Blackwell.

245

Jost, J. T. & Hunyady, O. (2002). The psychology of system justification and the palliative

function of ideology. European Review of Social Psychology 13: 111-153.

Jost, J. T., Glaser, J., Kruglanski, A. W. & Sulloway, F. J. (2003). Political Conservatism as

Motivated Social Cognition, Psychological Bulletin 129(3): 339–375.

Kaplowitz, N. (1990). National self-images, perception of enemies, and conflict strategies:

Psychopolitical dimensions of international relations. Political Psychology, 11, 39-82.

Karayanni, M. M. (2008). The Quest for Creative Jurisdiction: The Evolution of Personal

Jurisdiction Doctrine of Israeli Courts towards the Palestinian 29 Territories, Michigan Journal

of International Law, 665.

………………. (2008). The Quest for Creative jurisdiction: The Evolution of Personal

jurisdiction Doctrine of Israeli Courts toward the Palestinian Territories, 29 Michigan Journal of

International Law, 665-726.

Karp, Y. (2010). The State’s Failure to Obey Court Judgments: HCJ and Administrative Courts,

letter to Yehuda Weinstein, the Attorney General, February 2, 2010.

Karpel, D. (2007). My God, What did we do?, Ha’aretz (in Hebrew).

Katz-Freiman, T. (2003). Don’t touch my Holocaust – analyzing the barometer of responses:

Israeli artists challenging the Holocaust taboo. In S. Hornstein, L. Levitt, & L. J. Silberstein

(Eds.), impossible Images: Contemporary art after the Holocaust (pp. 129–154). New York: New

York University Press.

Kedar, A. (2001). The Legal Transformation of Ethnic Geography: Israeli Law and the

Palestinian Landholder 1948-1967, 33 NYU J. of International Law and Politics 923.

…………. (2004). Land settlement in the Negev in international law perspective, 8 Adalah’s

Newsletter, 1-7.

246

…………… (2006). The Educating Legal Formalism of the Early Israeli Supreme Court, 22

B.I.U. L. Review, 385-423 (In Hebrew).

Kelman H. C. (1999). The interdependence of Israeli and Palestinian national identities: The role

of the other in existential conflicts, 55 Journal of Social Issues 581-600.

Kelman, H. C. (2007a). Social-psychological dimensions of international conflict. In I. W.

Zartman (Ed.), Peacemaking in international conflict: Methods and techniques (Revised edition)

Washington, DC: United States Institute of Peace Press, pp. 61-107.

Kelman H. C. (2007b). The Israeli-Palestinian peace process and its vicissitudes: Insights from

attitude theory. American Psychologist, 62(4), 287-303.

Khalidi, R. (1997). Palestinian Identity, Columbia University Press.

Kimmel, P. R. (2006). In M. Deutsch, P. T. Coleman, & E.C. Marcus (Eds), The handbook of

conflict resolution: Theory and practice (2nd edition, pp. 625-648). San Francisco: Jossey-Bass.

Kimmerling, B. (1993). Patterns of militarism in Israel. 34 Archives Europeenes de Sociologie,

196-223.

……………… (2001). The Invention and Decline of Israeliness: State, Society, and the Military.

Berkeley, CA: University of California Press.

……………… (2002). Jurisdiction in an Immigrant-Settler Society, The “Jewish and

Democratic State”, Comparative Political Studies, 35, 1119-1144.

……………. (2004) Immigrants, Settlers, Natives: The Israeli State and Society Between

Cultural Pluralism and Cultural Wars. Tel-Aviv: Am Oved (in Hebrew).

247

Kimmerling, B. & Backer, I. (1985). The Interrupted System: Israeli Civilians in War and

Routine Times, New Brunswick, NJ: Transaction

Kimmerling, B. & Migdal, J. S. (2003). The Palestinian People: A History. Harvard University

Press.

Kitayama, S., & Markus, H.R. (Eds.)(1994). Emotion and culture: Empirical studies of mutual

influence. Washington, DC: American Psychological Association.

Klar, Y., Schori-Eyal, N. & Klar, Y. (2013). The “Never Again” State of Israel: The Emergence

of the Holocaust as a Core Feature of Israeli Identity and Its Four Incongruent Voices, Journal of

Social Issues, Vol. 69, No. 1, pp. 125-143.

Kleining, J. (1991). Valuing Life, Princeton University Press.

Kretzmer, D. (1990a). Forty Years of Public Law, 24 Isr. L. Rev. 341-355.

…………… (1990b). The Legal Status of the Arabs in Israel, Boulder, Colo: Westview.

…………… (1993). Judicial Review Over Demolition and Sealing of Houses in the Occupied

Territories, in Klinghoffer Book on Public Law, ed. I. Zamir, Jerusalem (in Hebrew).

…………… (1995). The Supreme Court and the Fourth Geneva Convention: Domestic

Enforcement and Interpretation, 26 Mishpatim 49 (in Hebrew).

……………. (1995a). Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied

Palestinian Territory: The Advisory Opinion: The Light Treatment of International.

Humanitarian Law, 99 American Journal of International Law, 88-102.

…………… (1997). The Path to Judicial Review in Human Right Cases: From Bergman and

Kol Ha'am to Mizrahi Bank, 28 Mishpatim, 359-385 [in Hebrew].

248

…………… (2002). The Occupation of Justice: The Supreme Court of Israel and the Occupied

Territories, SUNY Press.

…………… (2005). The Advisory Opinion: The Light Treatment of international Humanitarian

Law, 99 American Journal of International Law, 88.

…………… (2009). Israel, in The Role of Domestic Courts in Treaty Enforcement: A

Comparative Study, in Sloss, D. ed., Cambridge University Press, 273-325.

…………. (2012). The law of belligerent occupation in the Supreme Court of Israel, 94

International Review of the Red Cross, 207-236.

…………. (2013). The Law of Belliegerent Occupation as a System of Control: Dressing Up

Explotation in Respectable Garb, in The Impacts of Lasting Occupation: Lessons from Israeli

Society, Daniel Bar-Tal and Izhak Schnell, Eds., New York, Oxford University Press, 31-60.

Kriesberg, L. (1993). Intractable Conflict. Peace Review, 5, 417-421.

Kriesberg, L. (1998). Intractable Conflicts. In E. Weiner (Ed.), The Handbook of Interethnic

Coexistence, New York: Continuum, 332-342.

…………….. (2001). Mediation and the transformation of the Israeli-Palestinian conflict.

Journal of Peace Research, 38(3), 373-392.

Kruglanski, A. W. (2004). The psychology of closed mindedness. New York: Psychology Press.

Kruglanski, A. W., & Webster, D. M. (1996). Motivated closing of the mind: ‘seizing’ and

‘freezing’. Psychological Review, 103, 263-283.

Kunda, Z. (1990). The Case for Motivated Reasoning. Psychological Bulletin, 108 480-498.

249

Kuttab, J. (1992). Avenues Open for Defense of Human Rights in the Israeli Occupied

Territories, in E. Playfair, ed., International Law and the Administration of Occupied Territories;

p. 489. Oxford: Oxford Univ. Press.

Lacan J. (1955–1956). The Seminar, Book III: The Psychoses (R. Grigg, Trans.). London:

Routledge, 1993.

LaCapra, D. (2001). Writing History, Writing Trauma. The Johns Hopkins University Press.

Lahav, P. (1989). The Supreme Court of Israel: Formative Years, 1948-1955, 14 Tel Aviv

University Law Review, 479.

………… (1993). The Press and National Security,” in in Yaniv, A. (ed.), National Security and

Democracy in Israel, London: Lynne Rienner, 173–195;

…………. (1997). Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century,

University of California Press.

Landau, J. J. (1971). Israel and the Arabs, Jerusalem: Communication.

Landau, M. (1989). On Justiciability and Reasonability in Administrative Law, 14 Tel Aviv

University Law Review, 5.

Landman, S. (2010). Barriers to Peace: Protected Values in the Israeli-Palestinian Conflict in

Barriers to Peace in the Israeli-Palestinian Conflict, Bar-Siman-Tov, Y., ed., The Jerusalem

Institute for Israel Studies in cooperation with the Adenauer Stiftung, 135-177.

Langenbacher, E. (2010). Collective Memory as a Factor in Political Culture and International

Relations, in Langenbacher, E. & Shain, Y. (editors), Power and the Past: Collective Memory

and International Relations, Georgetown Univeristy Press, 13-49.

250

Lazar, A., Litvak-Hirsch, T., & Chaitin, J. (2008). Between culture and family: Jewish Israeli

young adults’ relation to the Holocaust as a cultural trauma. Traumatology, 14(4), 93 102.

Lerner, J. S., Gonzalez, R. M., Small, D. A., & Fischhoff, B. (2003). Effects of fear and danger

on perceived risks of terrorism: A national field experiment. Psychological Science, 14, 144–

150.

Lerner, N. (1994). Deportations from the Occupied Territories and the International Law, 4

Plilim 39 (in Hebrew).

Levitzki, N. (2001). His Honor: Aharon Barak – A Biography, Tel Aviv, Keter (In Hebrew).

Lieberman (1964) Threat and Assurance in the Conduct of Conflict, in Fisher, R., ed.

International Conflict and Behavioral Science, New York, Basic Books, 110-122.

Liebman, C. S. & Don-Yehiya, E. (1983). Civil Religion in Israel: Traditional Judaism and

Political Culture in the Jewish State, Berkeley: University of California Press.

Liebman, C. S. (1978). Myth, Tradition and Values in Israeli Society, Midstream, XXIV, 44–53.

Lifshitz, O. (2002). The Return to Rafiah, Ha-Daf Ha-Yarok, 7th February, 2002 (in Hebrew).

Likhovski, A. (2006). Law and Identity in Mandate Palestine. The University of North Carolina

Press.

Lissak, M. (1984). Israeli Society and Its Defense Establishment: The Social and Political Impact

of a Protracted Violent Conflict, London: Routledge.

…………. (2001). The ethos of security and the myth of the militarized society, Democratic

Culture: Israel and her Army, 4-5, 187-212 (in Hebrew).

251

Litvak-Hirsch, T. & Chaitin, J. (2010). "The Shoah Runs through our Veins": The Relevance of

the Holocaust for Jewish-Israeli Young Adults.

Liu, J. H. & Hilton, D. (2005). How the past weights on the present: Social representations of

history and their impact on identity politics. British Journal of Social Psychology, 44, 537–556.

Lustick, I. (1980). Arabs in the Jewish State: Israel's Control of a National Minority,Austin and

London: University of Texas Press.

…………. (1981). Israel and the West Bank after Elon Moreh: The Mechanics of De Facto

Annexation, 35 Middle East Journal, 557- 577.

…………. (1982). Arabs in the Jewish State. Austin: University of Texas Press.

Lyn, A. (1999). Before the Storm: Jewish–Arab Relations in the State of Israel, Tel Aviv: Karni

(In Hebrew).

Lynk, M. (2005). Down by Law: The High Court of Israel, International Law and the Separation

Wall, Journal of Palestine Studies 35, 6–24.

MacDonald, David (2002) Balkan Holocausts? Serbian and Croatian Victim-Centered

Propaganda and the War in Yugoslavia. Manchester: Manchester University Press.

Mack, J. E. (1983). Nationalism and the Self. The Psychohistory Review, 11, 47–69.

………….. (1990) The psychodynamics of victimization among national groups in conflict. In V.

D. Volkan, D. A. Julius, & J. V. Montville (Eds.), The psychodynamics of international

relationships (pp. 119-129). Lexington, MA: Lexington.

252

Magal, T., Bar-Tal, D & Halperin, E. (in press). Why is it so Difficult to Resolve the Israeli –

Palestinian Conflict by Israeli Jews? A Socio-Psychological Approach, in E. Ben-Rafael, J. H.

Schoeps, Y. Sternberg and O. Glöckner. Handbook of Israel: The Major Debates. Berlin: Mouton

de Gruyter.

Maksudyan, N. (2009). Walls of Silence: Translating the Armenian Genocide into Turkish and

Self–Censorship, Critique 37, 635–49.

Maoz, I., & McCauley, C. (2005). Psychological correlates of support for compromise: A polling

study of Jewish-Israeli attitudes toward solutions to the Israeli-Palestinian conflict. Political

Psychology, 26, 791–807.

Mautner, M. (1993). The Decline of Formalism and the Rise of Values in Israeli Law, Ma'agalay

Da'at (in Hebrew).

………….. (1994). The Reasonableness of Politics, 5 Theory and Criticism, 25-53 (In Hebrew).

…………... (2011). Law and the Culture of Israel, Oxford University Press.

Mazie, S. V. (2004). Importing Liberalism: Brown v. Board of Education in the Israeli Context,

36 Polity 389.

McCloskey, H. & Zaller, J. (1984). The American Ethos: Public Attitudes Toward Capitalism

and Democracy, Cambridge: Harvard University Press.

McGuire, K. T., & J. A. Stimson (2004). “The Least Dangerous Branch Revisited: New

Evidence on Supreme Court Responsiveness to Public Preferences,” 66(4) J. of Politics 1018.

Medina, B. (2006). Forty Years to the Yeredor Decision: The Right to Political Participation, 22

Mehkerey Mishpat 327-383. [in Hebrew]

253

……………. (2007). Four Myths about Judicial Review (In Response to Robert Bork’s and

Richard Posner’s Criticism of Aharon Barak’s Judicial Activism), 3 Din Udvarim 399-426. [in

Hebrew].

…………….. (2010). Constitutional Limits to Privatization: The Israeli Supreme Court Decision

to Invalidate Prison Privatization, 8 Int’l J. Const. L. 690.

Mesquita, B., & Frijda, N.H. (1992). Cultural variations in emotion: A review. Psychological

Bulletin, 112, 179-204.

Meydani, A. (2011). The Israeli Supreme Court and the Human Rights Revolution: Courts as

Agenda Setters, Cambridge University Press.

Miron, A. M., & Branscombe, N. R. (2008). Social Categorization, Standards of Justice, and

Collective Guilt. In A. Nadler, T. Malloy, & J. Fisher (Eds.), Social psychology of intergroup

reconciliation. (pp. 77-97), Oxford, UK: Oxford University Press.

Mishler, W., & R. S. Sheehan (1993). “The Supreme Court as a Countermajoritarian Institution?

The Impact of Public Opinion on Supreme Court Decisions,” 87(1) American Political Science

Rev. 87.

Morris, B. (1999). Righteous Victims: A History of the Zionist–Arab Conflict, 1881–1999. New

York: Alfred A. Knopf.

Moses, R. (1990). On Dehumanizing Enemy. In V. D. Volkan, D. A. Julius, & J. V. Montville

(Eds.), The psychodynamics of international relationships (pp. 111-118). Lexington, MA:

Lexington Books

Nadler A. & Saguy T. (2003). Reconciliation between nations: Overcoming emotional deterrents

to ending conflicts between groups. In Langholtz H., Stout C. E. (Eds.), The psychology of

diplomacy, Connecticut, CT: Praeger Publishers, 29-46.

254

Nadler, A. & Shnabel, N. (2006). Instrumental and socio-emotional paths to intergroup

reconciliation and the need-based model of socio-emotional reconciliation. In Nadler, A.,

Malloy, T. & Fisher, J. (Eds.), Social psychology of intergroup reconciliation (pp.37-56). New

York: Oxford University Press.

Nasie, M., & Bar-Tal, D. (2012) in Sociopsychological infrastructure of an intractable conflict

through the eyes of Palestinian children and adolescents. Peace and Conflict: Journal of Peace

Psychology, 18, 3-20.

Navot, D. & Peled, Y. (2009). Towards a Constitutional Counter-Revolution in Israel?, 16

Constellations, 429.

Navot, S. (2007). The Constitutional Law of Israel, Kluwer Law International, the Netherlands.

Neal, A. G. (1998). National trauma and collective memory: Major Events in the American

Century. New York: M.E. Sharpe.

…………. (2005). National Trauma and Collective Memory: Extraordinary Events in the

American Experience, New York: M. E. Sharpe.

Negbi, M. (1985). Paper Tiger: The Struggle for a Press Freedom in Israel, Tel Aviv, Poalim

Press (in Hebrew).

Netanyahu, S. (1993). The Supreme Court of Israel: A Safeguard of the Rule of Law, 5 Pace Int'l

L. Rev., 1-24.

Nets-Zehngut, R. (2008). The Israeli National Information Center and Collective Memory of the

Israeli-Arab Conflict. The Middle East Journal, 62 (4), 653-670.

255

………………… (2012). Overview of the Israeli Memory of the Palestinian Refugee Problem.

24 Peace Review, 1-8.

Nets-Zehngut, R., Pliskin, R., Bar-Tal, D. (2012). Self-censorship of historical narratives of

conflicts: Findings from Israel regarding the 1948 Palestinian exodus. Manuscript submitted for

publication.

Nishri- Shimonovitz, M. (2014). Expression of the ethos of conflict in the Israeli-Jewish plastic

art . mater thesis submitted to School of Education, Tel Aviv University.

Noor M., Brown R. & Prentice G. (2008b). Prospects for inter-group reconciliation: Social

psychological predictors of inter-group forgiveness and reparation in Northern Ireland and Chile.

In Nadler A., Malloy T., Fisher J. D. (Eds.), Social psychology of inter-group reconciliation:

From violent conflict to peaceful co-existence—Going beyond victimization, guilt and distrust

(pp. 97-114). Oxford, UK: Oxford University Press.

Noor M., Brown R. & Prentice G. (2008a). Precursors and mediators of inter-group

reconciliation in Northern Ireland: A new model. British Journal of Social Psychology, 47, 481-

495.

Noor, M., Shnabel, N., Halabi, S. & Nadler, A. (2012). When suffering begets suffering: the

psychology of competitive victimhood between adversarial groups in violent conflicts, 16 Pers

Soc Psychol Rev, 351-74.

Ofer, D. (2009). The Past That Does Not Pass: Israelis and Holocaust Memory, Israel Studies,

Vol. 14, No. 1, pp. 1-35.

Oren, N. (2005). The Influence of Major Events in the Israeli-Arab Conflict on the Ethos of the

Conflict of the Israeli Jewish Society (1967-2000), Doctoral Dissertation, Tel Aviv University.

256

………… (2009). The Israeli Ethos of Conflict 1967-2005 Working Paper #27 Fairfax, VA:

Institute for Conflict Analysis and Resolution, George Mason University

………… (2010). Israeli identity formation and the Arab–Israeli conflict in election platforms,

1969–2006, Journal of Peace Research, 47, 193–204.

Oren, N., & Bar-Tal, D. (2006). Ethos and Identity: Expressions and Changes in the Israeli

Jewish Society, 27 Estudios de Psicología, 293-316.

Oren, N., Bar-Tal, D. & David, O. (2004). Conflict, Identity and Ethos: The Israeli–Palestinian

case. In: Yueh-Ting Lee et al. (eds) The Psychology of Ethnic and Cultural Conflict. Westport,

CT: Praeger, 133–154.

Oren, N., Nets-Zehngut, R., & Bar-Tal, D. (In press). Construction of the Israeli-Jewish conflict-

supportive narrative and the struggle over its dominance, Political Psychology.

Oron, Y. (1993). Ze’hut Ye’hudit-Isra’elit [Jewish Israeli identity]. Tel Aviv, Israel: Sifriat

Poalim.

Packer, D. J., & Chasteen, A. L. (2010). Loyal deviance: Testing the normative conflict model of

dissent in social groups. Personality and Social Psychology Bulletin, 36, 5-18.

Paez, D. & Liu, J. H. (2011). Collective Memory of Conflicts, In Intergroup Conflicts and their

Resolution: Social psychological perspective. New York: Psychology Press, 105-124.

Papadakis, Y. (1998). Greek Cypriot narratives of history and collective identity: Nationalism as

a contested process. American Ethnologist, 25(2), 149–165.

………………. (2008). History education in divided Cyprus: A comparison of Greek Cypriot

and Turkish Cypriot school books on the history of Cyprus. PRIO report 2/2008. Oslo, Norway:

International Peace Research Institute.

257

Paz-Fuchs, A. & Ronen, Y. (2012). Occupational Hazards, 30 Berkeley Journal of International

Law, 580-637.

Peled, Y. (2013). The Challenge of Ethnic Democracy: The State and Minority Groups in Israel,

Poland and Northern Ireland, Routledge

Peri, Y. (1983). Between Battles and Ballots: Israeli Military in Politics, Cambridge: Cambridge

University Press.

…………. (2001). The changing security discourse and the change of concept of citizenship in

Israel. Democratic Culture: Israel and Its Army, 4-5, 233-265 (In Hebrew).

Perlmutter, A. (1969). Military and politics in Israel. London: Frank Cass.

Petersen, R. D. (2002). Understanding ethnic violence: Fear, hatred, and resentment in twentieth-

century Eastern Europe. Cambridge, England: Cambridge University Press.

Podeh, E. (2002). The Arab-Israeli Conflict in Israeli History Textbooks, 1948-2000. Wesport,

CT: Bergin & Garvey.

Porat, D. A. (2004) From the Scandal to the Holocaust in Israeli Education. Journal of

Contemporary History, 39, 619–636.

…………… (2008). Israeli Society, the Holocaust and its Survivors. London, U.K.: Vallentine

Mitchell.

Posner, R. (2007). Enlightened Despot review of The Judge in a Democracy By Aharon Barak,

New Republic. http://www.newrepublic.com/article/enlightened-despot.

Pruitt, D. G. (1997). Ripeness Theory and the Oslo Talks, 2 International Negotiation 237–250.

258

Rabin, Y. & Gutfeld, A. (2007). Marbury v. Madison and its Impact on the Israeli Constitutional

Law, 16 University of Miami International & Comparative Law Review, 303-335.

Rabinowitz, D. & Abu-Baker, H. (2002). The “Stand Tall” Generation. Jerusalem: Keter.

(Hebrew).

Rapoport, A. (1960). Fights, games and debates. Ann Arbor, MI: University of Michigan Press.

Reducing prejudice and discrimination (pp. 225–246). Hillsdale, NJ: Erlbaum.

Reichman, A. (2001). "When We Sit to Judge We Are Being Judged": The Israeli G.S.S Case,

Ex Parte Pinochet and Domestic/Global Deliberation, 9 Cardozo J. Int'l & Comp. L. 41-103.

…………….. (2011). Judicial Independence in Times of War: Prolonged Armed Conflict and

Judicial Review of Military Actions in Israel, 1 Utah Law Review, 63-96.

Reiter, Y. & Lior Lehrs, L. (2010) The Sheikh Jarrah Affair: The Strategic Implications of

Jewish Settlement in an Arab Neighborhood in East Jerusalem, The Jerusalem Institute for Israel

Studies, The JIIS Studies Series no. 404, 1-96 (in Hebrew).

Remennick, L. (2008). Contested motherhood in the ethnic state: Voices from an Israeli

postpartum ward. Ethnicities, 8(2), 199 226.

Rieber, R.W. (Ed.), (1991). The psychology of war and peace: The image of the enemy. New

York: Plenum

Rigby, A. (1995). Unofficial Nonviolent Intervention: Examples from the Israeli—Palestinian

Conflict. Journal of Peace Research, 32(4), 453-467.

259

Rimé, B., & Christophe, V. (1997). How individual emotional episodes feed collective memory.

In J.P. Pennebaker, D. Paez, & B. Rimé (Eds.), Collective memory of political events: Social

psychological perspectives (pp. 131-146). Mahwah,NJ: Lawrence Erlbaum.

Rokeach, M. (1960). The open and closed mind. New York: Basic Books

Ronen, Y. (2008). Illegal Occupation and its Consequences, 41 Israel Law Review, 201-245.

……………….. Blind In Their Own Cause: The Military Courts In The West Bank, 4

Cambridge Journal of International and Comparative Law, 738–762. [year?]

Rosenfeld, M. & Sajó, A. (2012). The Oxford Handbook of Comparative Constitutional Law,

Oxford University Press.

Rosler, N. (2012). Political context, social challenges, and leadership: Rhetorical expressions of

psycho-social roles of leaders in intractable conflict and its resolution process – The Israeli-

Palestinian case. Doctoral Dissertation, Hebrew U. of Jerusalem.

Rosler, N., Bar-Tal, D., Sharvit, K., Halperin, E. & Raviv (2009). Moral Aspects of Prolonged

Occupation: Implications for an Occupying Society, in Scuzzarello, S., Kinnvall, C. & Monroe,

K. Eds., On Behalf of Others: The Morality of Care in a Global World. New York: Oxford

University Press.

Ross, M. H. (2001). Psychocultural interpretations and dramas: Identity dynamics in ethnic

conflict. 22 Political Psychology, 157-198.

Rouhana, N., & Bar-Tal, D. (1998). Psychological Dynamics of Intractable Conflicts: The

Israeli-Palestinian Case. American Psychologist, 53, 761-770.

Rubinstein, A. (1988). The High Court of Justice Disturbs the Israeli Military, Ha’aretz (In

Hebrew).

260

Rubinstein, A. & Medina, B. (2005). The Constitutional Law of the State of Israel: Vol. 2 (6th

edition), Jerusalem and Tel-Aviv, Shoken (In Hebrew).

Rynhold, J. (2007). Cultural shift and foreign policy change: Israel and the making of the Oslo

accords, Cooperation and Conflict 42, 419-440 (in Hebrew).

Saban, I. (1996). The Impact of the Supreme Court on the Status of the Arabs in Israel, 3

Mishpat VeMimshal 541-569 (in Hebrew).

………….. (2004). Minority Rights in Deeply Divided Societies: A Framework for Analysis and

the Case of the Arab-Palestinian Minority in Israel, 36 NYU J Int'l L & Pol, 885-1003.

…………… (2005). The Arab-Palestinian Minority and the Supreme Court: A Portrayal (and

Prognosis) not in Black and White, 8 Mishpat U'Mimshal, 23-47 (in Hebrew).

……………. (2010). After the Storm? The Israeli Supreme Court and the Arab-Palestinian

Minority in the Aftermath of October 2000, in Law and Government in Israel, Doron, G. Naor,

A. & Meydani, A. editors, 37-53.

…………… (2011). Theorizing and Tracing the Legal Dimensions of a Control Framework:

Law and the Arab-Palestinian Minority in Israel's First Three Decades (1948–1978), 25 Emory

International Law Review, 299-378.

Sackett, D. L. (1979). "Bias in analytic research". Journal of Chronic Diseases 32 (1–2): 51–63.

Sagy, Y. (2014). The Missing Link: Legal Historical Institutionalism & the Israeli High Court of

Justice, 31 ARIZ. J. OF INT'L & COMP. L.

……….. (In press A). A New Look at Public Law Adjudication: A Critical Organizational

Analysis & An Israeli Test Case.

261

………... (In press B). The Missing Link: Legal Historical Institutionalism and the Israeli High

Court of Justice

Salzberger, E. M, (1996). Two remarks on the Decision of the Israeli Supreme Court in the Case

of the Gal Statute, or an Invitation to Open the Discussion Again, 3 Mishpat Umimshal, 679-696

(in Hebrew).

…………………. (2003). Temporary Appointments and Judicial Independence – Theoretical

Analysis and Empirical Findings from the Supreme Court of Israel, 35 Israeli Law Review, 481.

Sande, G.N., Goethals, G.R., Ferrari, L. & Worth, L.T. (1989). Value- guided attributions:

Maintaining the moral self-image and the diabolical enemy-image. Journal of Social Issues,

45(2),91-118.

Sarat, A. (1999). Capital Punishment as a Fact of Legal, Political and Cultural Life: An

Introduction, in The Killing State: Capital Punishment in Law, Politics, and Culture, Sarat, A.

Ed., Oxford University Press, 3-26.

Sarat, A. & Kearns, T. R. (1991). A Journey through Forgetting: Toward a Jurisprudence of

Violence, in The Fate of Law, Sarat, A. & Kearns, T. R. eds., University of Michigan Press, 209-

273.

Schachter, S. (1951). Deviation, rejection, and communication. Journal of Abnormal and Social

Psychology, 46, 190-208.

Schori-Eyal, N., Klar, Y. & Roccas, S. (2011). The Shadows of the past: Effects of Historical

Group trauma on current intergroup conflicts. Manuscript submitted for publication.

Schuman, H., & Scott, J. (1989). Generations and collective memory. American Sociological

Review, 54, 359–381.

262

Seddon, D. (2004). A Political and Economic Dictionary of the Middle East, Taylor & Francis, at

p. 532.

Segal, Z. (1986). Standing Before the Supreme Court Sitting as a High Court of Justice, Tel

Aviv: Papyrus Publishing House.

Segev, J. (2006). The Changing Role of the Israeli Supreme Court and the Question of

Legitimacy, 20 Temple International & Comparative Law. Journal 1-56.

Segev, T. (1984). 1949—The First Israelis (Jerusalem, 1984), in Hebrew.

……….. (2000) The Seventh Million: The Israelis and the Holocaust (H. Watzman, Trans.).

New York: Macmillan.

………… (2012). That seventies show: The settlements didn't begin with Begin, Ha’aretz,

http://www.haaretz.com/weekend/the-makings-of-history/that-seventies-show-the-settlements-

didn-t-begin-with-begin.premium-1.472488

Seidman, G. I. (2010). Judicial Administrative Review in Times of Discontent: The Israel

Supreme Court and the Second Palestinian Uprising, in Law and Government in Israel, Gideon

Doron, Arye Naor, Assaf Meydani, editors, 54-75.

Sfard, M. (2003). “International Litigation in the Local Court: Between Legal Dilution to Legal

Isolantionalism – Assessment of the Situation” 9 Hamishpat 161-181 [in Hebrew].

Shachar, Y. (2000). Solidarity and Generational Sequencing in the Israeli Supreme Court, 16

Mehkarei Mishpat (Bar Ilan University Law Review), 161-182 (in Hebrew).

Shachar, Y., Gross, M. & Goldschmit, C. (2004). 100 Leading Precedents of the Supreme Court

– A Quantitative Analysis. 7 Mishpat Umimshal- Haifa University Law Review, 243-303.

263

Shachar, Y., Harris, R. & Gross, M. (1996). References Patterns of the Supreme Court in Israel -

Quantitative Analysis. 26 Hebrew University Law Review, 115-217 (in Hebrew).

…………………………………………. (1997). Anatomy of Discourse and Dissent in the

Supreme Court – Quantitative Analysis, 21 Tel-Aviv University Law Review 750-795 (in

Hebrew).

Shafir, G. (1996). Land, Labor and the Origins of the Israeli-Palestinian Conflict, 1882-1914,

University of California Press.

Shafir, G. & Yoav P. (2002). Being Israeli: The Dynamics of Multiple Citizenship. New York:

Cambridge University Press.

Shahar, Y. Harris, R. & Gross, M. (1997). Acceptance and Rejection of Appeals to the Supreme

Court: Quantitative Analyses, mechkarèi mishpát [legal studies], 13, 329-355 (in Hebrew).

Shamir, M. & Weinshall-Margel, K. (2005). Disqualifications of Political Party Lists and

Candidates for the Knesset – Were the 2003 Elections Unique? In Arian, A. & Shamir, M. Eds,

The Elections In Israel: 2003, Israel Democracy Institute, 101

Shamir, R. (1988). The Political Role of Israel's High Court of Justice: A Sociological

Perspective, Unpublished Master's Thesis submitted to the Tel Aviv University, Faculty of

Social Sciences, Dept. of Sociology and Anthropology, 1988 (in Hebrew).

……………. (1990). Landmark Cases and the Reproduction of Legitimacy: The

Case of Israel's High Court of Justice, 24 Law and Society R. 781-805.

………….. (1996). Suspended in Space: Bedouins under the Law of Israel, 30 Law & Society

Review, 231-258.

264

…………….. (2008). Virtual Roundtable, 45 Newsletter,

http://adalah.org/newsletter/eng/feb08/roundtable/shamir.html

Shapira, A. (1973). Self-Restraint of the Supreme Court and the Preservation of Civil Liberties, 2

lyunei Mishpat 640.

Shapira, A. (1998). The Holocaust: Private memories, public memory. Jewish Social Studies, 4,

40–58.

Sharvit, K. (2008). Activation of the ethos of conflict while coping with stress resulting from

intractable conflict. Unpublished PhD diss., Tel Aviv University, Tel Aviv.

Sheleff, L. (1993). The Green Line is the Border of Judicial Activism: Queries about Supreme

Court Judgments in the Territories. Tel Aviv University Law Review, 17, 757-809 (in Hebrew).

Shenhav, Y. (2010). The Time of the Green Line: A Jewish Political Essay, Tel Aviv, Am Oved

(in Hebrew).

Shetreet, S. (1984). Judicial Independence and Accountability in Israel, 33 Int'l & Comp. L.Q.

979.

…………... (1994). Justice in Israel: A Study of the Israeli Judiciary, Martinus Nijhoff

Publishers, Dordrecht, Boston, London.

Shinar Levanon, O. (In preparation). Beyond the Rule of Law: Psycho-Social Challenges and

Post-Transition Democracies.

Shohar, O. & Segal, Z. (2007). Saving the High Court of Justice from Itself, Ha’aretz, 17 August

2007 (In Hebrew).

265

Shohat. E. (1989). Israeli Cinema: East/West and the Politics of Representation. Austin, TX:

University of Texas Press.

Shoshani Rosenbaum, M. (2009). Dare to Be Human: A Contemporary Psychoanalytic Journey,

Routledge.

Shoshani, M., Shoshani B. & Shinar, O. (2010). Fear and Shame in an Israeli Psychoanalyst and

His Patient: Lessons Learned in Times of War, Psychoanalytic Dialogues, Psychoanalytic

Dialogues, 20, 285.

Shragai, N. (1995). The Temple Mount Conflict, Keter, Jerusalem (in Hebrew).

Skitka, L. J., Bauman, C. W., Aramovich, N. P., & Morgan, G. C. (2006). Confrontational and

preventative policy responses to terrorism: Anger wants a fight and fear wants “them” to go

away. Basic and Applied Social Psychology, 28, 375–384.

Smooha, S. (1978). Israel: Pluralism and Conflict, Berkeley: University of California Press.

Somerville, J. (1981). Patriotism and war. Ethics, 91, 568-578.

Stahl, Z. (2011). Tailwind Non-Enforcement Of Judicial Orders, Foot Dragging And The

Retroactive Legalization Of Illegal Construction In The Occupied Palestinian Territories, Yesh

Din – Volunteers for Human Rights.

Staub E. (2003). Notes on cultures of violence, cultures of caring and peace and the fulfillment

of basic human needs. Political Psychology, 24, 1-21.

…………. (2006). Reconciliation after Genocide, Mass Killing, or Intractable Conflict:

Understanding the Roots of Violence, Psychological Recovery, and Steps toward a General

Theory, Political Psychology, 27, 867–894.

266

Staub, E., & Bar-Tal, D. (2003). Genocide, mass killing, and intractable conflict: Roots,

evolution, prevention, and reconciliation. In D. O. Sears, L. Huddy, & R. Jervis (Eds.),

Handbook of political psychology (pp. 710-751). Oxford University Press. New York.

Stein, H.F. (1978). Judaism and the group-fantasy of martyrdom: The psycho-dynamic paradox

of survival through persecution. Journal of Psychohistory, 6, 151-210.

Stein, J. B. & Brecher, M. (1976). Image, Advocacy and the Analysis of Conflict: An Israeli

Case Study,” The Jerusalem Journal of International Relations, 33–58.

Stendel, O. (1996). The Arabs in Israel, Sussex Academic Press.

Stephan,W. G., & Stephan, C.W. (2000). An Integrated Threat Theory of Prejudice. In S.

Oskamp (Ed.),

Stone, R. A. (1982). Social Change in Israel: Attitudes and Events, 1967–1979. New York:

Praeger Special Studies.

Straschnov, A. (1994). Justice Under Fire. Tel Aviv: Yedioth Aharonot (in Hebrew).

Streiner, S. (2001). Shooting and crying: The emergence of protest in Israeli popular music, The

European Legacy 6, 771-792.

Tajfel, H. (1978). Social Categorization, Social Identity and Social Comparison, in H. Tajfel

(Ed.), Differentiation between Social Groups, London: Academic Press, 61-76.

Tajfel, H., & Turner, J. C. (1986). The social identity theory of intergroup behaviour. In S.

Worchel & W. G. Austin (Eds.), Psychology of Intergroup Relations (pp. 7–24). Chicago, IL:

Nelson-Hall.

Tessler, M. A. (1994). A History of the Israeli-Palestinian Conflict, Indiana University Press

267

Tessler, T. (1999). History and Nationalism in the Poetry of the War of Independence. Master's

Thesis, Tel Aviv University (in Hebrew).

Tetlock, P. E. (1999). Coping with Tradeoffs: Psychological Constraints and Political

Implications. In A. Lupia, M. D. McCubbins & S. L. Popkin (eds.), Elements of Reason:

Cognition, Choice, and the Bounds of Rationality, Cambridge: Cambridge University Press, pp.

239-263.

Tetlock, P., E. (1989). Structure and function in political belief system. In A. R. Pratkanis, S. J.

Breckler, & A. G. Greenwald (Eds.), Attitude structure and function (pp. 126-151) Hillsdale, NI:

Erlbaum.

…………….. (2003). Thinking the Unthinkable: Sacred Values and Taboo Cognitions. Trends in

Cognitive Science, 7, 320-324.

The World Bank (2011). World Development Report: Conflict, Security and Development, The

International Bank for Reconstruction and Development, Washington DC.

Tint, B. (2010) “History, Memory and Intractable Conflict,” Conflict Resolution Quarterly 27,

239-256.

Tsur, N. (2013). Vocabulary and the Discourse on the 1967 Territories. in Bar-Tal, D., and

Schnell, Y. eds., The Impacts of Lasting Occupation: Lessons from Israeli Society. New York:

Oxford University Press, pp. 471–506.

Turner, J. C. (1991). Social influence. Milton Keynes: Open University Press.

…………… (1999). Some Current Issues in Research on Social Identity and Self-Categorization

Theories. In N. Ellemers, R. Spears, & B. Doosje (Eds.), Social identity: Context, commitment,

content (pp. 6-34). Oxford: Blackwell.

268

Turner, J. C., Hogg, M. A., Oakes, P. J., Reicher, S. D., & Wetherell, M. S. (1987).

Rediscovering the social group: A self-categorization theory. Oxford and New York: Blackwell.

Turner, J. H., Stets, J. E. (2005). The Sociology of Emotions, Cambridge University Press, New

York.

Tyler, T. R. (2006). Psychological Perspectives on Legitimacy and Legitimation, 57 Annual

Review of Psychology, 375-400.

Tyler, T. R., & Huo, Y. J. (2002). Trust in the Law: Encouraging Public Cooperation with the

Police and the Courts. New York: Russell Sage Foundation,

Urian, D. (1996). The Arab in Israeli Theatre, Tel Aviv, Or Am (in Hebrew).

Vered, S. & Bar-Tal, D. (2014). Routinization of the Israeli-Arab Conflict, The Perspective of

Outsiders, 29 Israel Studies Review, 41–61.

Vertzberger, Y. (1990). The world in their minds: Information processing, cognition and

perception in foreign policy decision making. Stanford: Stanford University Press.

Vital, D. (1982). Zionism: The Formative Years, Oxford: Clarendon Press.

Volkan, V. (1997). Blood lines: From ethnic pride to ethnic terrorism. Boulder, Colorado:

Westview Press.

……………… (2004). Chosen trauma: the political ideology of entitlement and Violence, Berlin

Meeting, http://vamikvolkan.com/Chosen-Trauma,-the-Political-Ideology-of-Entitlement-and-

Violence.php

269

………….. (2006). Large-group psychodynamics and massive violence, Ciência & Saúde

Coletiva, vol. 11, núm. 2., 303-314.

…………….. (2014). Psychoanalysis, International Relations and Diplomacy: A Sourcebook

On Large-Group Psychology, Karnac Books.

Watson, G. R. (2005). The "Wall" Decisions in Legal and Political Context, 99 AM. J.

International 22.

Weber, M. (1968). Economy and Society: An Outline of Interpretive Sociology. Ed. Guenther

Roth and Claus Wittich. New York: Bedmister Press, 36.

Weill, R. (2012). Hybrid Constitutionalism: The Israeli Case for Judicial Review and Why We

Should Care, 30 Berkeley Journal of International Law, 349-411.

……….. (2012a). Reconciling Parliamentary Sovereignty and Judicial Review: On The

Theoretical and Historical Origins of the Israeli Legislative Override Power, 39 Hastings Const.

L.Q. 457-510.

Weinberg, H, & Nuttman-Shwartz, O. (2006). Group Work and Therapy in Israel: Mirroring a

Regressed–Traumatized Society. Organisational & Social Dynamics 6, 99.

Weinshall-Margel, K. (2011). Attitudinal and Neo-Institutional Models of Supreme Court

Decision Making: An Empirical and Comparative Perspective from Israel, 8 Journal of Empirical

Legal Studies, 556–586.

Wertsch, J. (2002). Voices of collective remembering. Cambridge: Cambridge University Press.

White, R. K. (1970). Nobody Wanted War: Misperception in Vietnam and Other Wars. Garden

City, NY: Anchor Books.

270

Willer, R. (2004). The effects of government-issued terror warnings on presidential approval

ratings. Current Research in Social Psychology 10: 1-12.

Winter, J. (2010) 'Thinking about silence' in E. Ben-Ze'ev, R. Ginio and J. Winter, Shadows of

War: A Social History of Silence in the Twentieth Century, Cambridge: Cambridge University

Press, 3-31.

Wistrich, R.S. (1999a). Introduction: The Devil, the Jews and hatred of the ‘Other’. In R.S.

Wistrich (Ed.), Demonizing the Other: Anti-Semitism, racism and xenophobia (pp. 1-16).

Wohl, M. J. A., Branscombe, N. R. & Klar, Y. (2006). Collective Guilt: Emotional Reactions

when One's Group has Done Wrong or been Wronged, 17 European Review of Social

Psychology, 1-37.

Wolfsfeld, G. (2004). Media and the path to peace, Cambridge: Cambridge University Press.

Worchel, S. (1999) Written in blood: Ethnic identity and the struggle for human harmony. New

York: Worth.

Yadgar, Y. (2004) Our Story: The National Narratives in the Israeli Press, Haifa University Press

(in Hebrew).

Yarom, T. (2007). To See If I'm Smiling, Israel, Tamar Yarom Productions (in Hebrew).

Yiftachel, O. (2005) Geographer in Legal Space, 2 Din U'dvarim, 1-9 (in Hebrew).

Yishai, Y. (1987). Land or Peace: Whither Israel? Hoover Press Publication.

Yonah, Y. (1998). A State of all its Citizens, Ethnic State or Multicultural Democracy? Israel

and the Limits of Liberal Democracy, 16 Alpayim, 238-263.

271

Zaher, S. (2009). On Institutional Discrimination in the Implementation of Israeli Supreme Court

Decisions, 63 Adalah’s Newsletter.

Zamir, Y. (1990). Administrative Law: Revolution or Evolution?, 24 Israel Law Review 356.

…………. (1995). Administrative Law, in The Law Of Israel: General Surveys, I. Zamir & S.

Colombo eds.

………….. (2005). Equality of Rights for Arabs in Israel, 9 Mishpat Umimshal, 11-37 (In

Hebrew).

Zandberg, E. (2006). Critical laughter: Humor, popular culture and Israeli Holocaust

commemoration. Media, Culture & Society, 28, 561–579.

Zemer, H. (1979). The High Court of Justice Boomerang, Davar, 22nd, June, 1979, 15 (in

Hebrew).

Zertal, A. (1975). Security against Real Morality, Al Ha-Mishmar, 28th February, 1975 (in

Hebrew).

Zertal, I. (2005). Israel’s Holocaust and the Politics of Nationhood, Cambridge University Press.

Zertal, I. & Eldar, A. (2007). Lords of the Land, The War for Israel's Settlements in the Occupied

Territories, 1967-2007

Zuckerman, M. (1993). Shoah ba-kheder ha-a’tum: ha-“shoah” ba-I’tonut ha-israelit be-tkufat

milkhemet ha-mifrats [Shoah in the sealed room: The “Holocaust” in Israeli press during the

Gulf War]. Tel Aviv, Israel (In Hebrew).