DEMOCRACY, LAW AND NATIONAL SECURITY IN ISRAEL by Menachem Hofnung. Aldershot, England: Dartmouth, 1996. 336 pp. Cloth $76.95. ISBN 1 85521 842 9.

Reviewed by Daniel C. Kramer, Politics-Economics-Philosophy Department, College of Staten Island City University of New York. E-mail: kramer-d@postbox.csi.cuny.edu.

 Israel has never had a moment since it came into being over fifty years ago when it has not feared for its existence. A small island in a hostile sea, its leaders have continually had to worry about the very preservation of the State. At the same time, these leaders have made it clear that the country must remain a democracy. How successful they have been in reconciling the need to safeguard the nation from destruction with the desire to preserve democracy and the rule of law is the subject of this fine book by Menachem Hofnung.

Professor Hofnung's Introduction contains both a statement of the dilemma noted above and a lengthy definition of the rule of law. This definition includes not only the requirement that steps taken by a governmental actor be authorized by the law but also that the political system feature, e.g., free elections, "primary arrangements" the responsibility of an elected legislature rather than of executive office holders, an independent judiciary, equality under the law, and respect for political and civil rights. (The absence of one of these components is an infringement of the rule of law but does not necessarily mean that it is totally absent.) Chapter 1 is a historical and comparative study of states of emergencies in other democratic nations, ranging from the Roman Republic with its temporary dictators to martial law during the U.S. Civil War to the more recent examples of Northern Ireland, Quebec and Sri Lanka. Chapter 2 provides a lengthy discussion of the legal bases for the state of emergency that has been in force in Israel since May 1948, when the country was established. The main prop is Section 9 of the Law and Administration Ordinance of 1948, under which during a state of emergency proclaimed by the Knesset (the Israeli Parliament), any member of the government may promulgate emergency regulations for the defense of the state, the furtherance of public security, and/or the maintenance of supplies and essential services. In May 1948, the Ben Gurion Government proclaimed that a state of emergency exists, and this proclamation has never been revoked by the legislature. Surprisingly, after 1955 most "emergency" regulations did not have anything to do with national security emergencies but, rather, were currency controls and orders to strikers to go back to work.

Chapter 3 deals with emergency powers and civil rights, under which category he includes citizenship, freedom of movement and the right to own property. As is well known, Jews immigrating to Israel are automatically granted citizenship by the 1950 Law of Return. However, and at least partly for reasons of security, the government wanted to discourage Arabs who had fled the country during the 1948 War of Independence from coming back. Consequently, as Hofnung details, it became extremely difficult for any returnees to acquire citizenship. It was not until 1980 that Israeli citizenship was granted automatically to all Arabs who had lived in Mandatory Palestine and were in the country in 1952 (as well as the children of these men and women). He also discusses how in the 1950s many Israeli Arabs (though very few Jews) had to get permits to move from one area in Israel to another. Many pages are devoted to describing the devices used by the government to confiscate land belonging to Arab refugees and even some property owned by Arab citizens.

Chapter 4 deals with the conflict between national security and "political" rights such as freedom of expression, freedom of assembly and demonstration, freedom of association and the right to vote. Under the first rubric, Hofnung analyzes in depth the country's requirements that newspapers be licensed, the right of the military censor to ban the publication of information which in his opinion is likely to harm national security, and the self-censorship semi-voluntarily accepted by the editors of the mainstream press. He then describes how the Supreme Court has developed rules governing when parades and demonstrations can be banned and how they may be regulated. The cardinal rule is that parade and demonstration permits may be denied when the event creates a "proximate certainty" that the public peace or public safety will be disturbed. The police may find "proximate certainty" even when no clear and present danger exists; but they must have more than a mere intuition that violence will erupt. On the subject of freedom of association, the first Israeli measure, The Prevention of Terrorism Ordinance, was aimed at Jewish paramilitary organizations which were operating independently of the Army (IDF), including the Stern Gang which murdered UN envoy Count Folke Bernadotte in 1948. In 1980 this law was amended by the Likud Government, which contained members who had worked for these organizations, to make it more useful as a tool against groups allied with the Palestine Liberation Organization. Other laws limiting freedom of association are described, one of which was used to dissolve an Arab political party (Al-Ard) that the Supreme Court had said a few days previously had no right to participate in the 1965 elections because some of its candidates denied Israel's right to exist. The last pages of the Chapter describe the fight in the 1980s over whether the right-wing extremist Kach movement and an Arab party, the Progressive List for Peace, should be allowed to take part in the 1984 and 1988 elections. Kach called for the expulsion of all Arabs from Israel; while the PLP favored the establishment of a Palestinian State but did not say that Israel had no right to exist. The Supreme Court permitted both on the ballot in 1984: in 1988 it allowed the PLP but not Kach to run candidates. Recent legislation bars a party from participating in elections if it denies the existence of Israel as the state of the Jewish people; is anti-democratic; or incites to racism. Hoffnung makes it clear than the ban against racist parties (for which read "Kach") was motivated less by a concern for national security and more by the desire of the Likud Party and its religious allies to eradicate a threat to their electoral success,

Chapter 5 treats of civilian control of security activities. Though there is ultimate civilian control over the IDF, it through its chiefs plays an important role in the formulation of foreign and national security policy. The Knesset's control of the Mossad (responsible for intelligence gathering and covert operations abroad) and the Shin Bet (responsible for the eradication of domestic terrorism) is tenuous though a bit tighter than it used to be. Chapters 6, 7, 8 and 9 deal with Israel and the Occupied Territories, i.e., the West Bank and Gaza. Noted on these pages are the planting of Jewish settlements there against the fervent wishes of the Arab majority; the violent reaction of that majority (including the "Intifada" that began in 1987); and the often brutal reaction of the Israeli authorities, including preventive detention, the demolition of homes of suspected terrorists, the beating of civilians, the use against them of plastic or rubber bullets, and the cutting of phone lines. A three-page chapter on the Israel-Palestinian peace process and a Conclusion end the volume.

The book is a major contribution to the literature on human rights in Israel. There is more information here than in other books in English relating to this topic about how during the 1950s Israeli security policies adversely affected Israeli Arabs' freedom of movement and citizenship and property rights, about the complex system of military censorship, and about the painfully slow development of the right of freedom of association. Also well-chronicled is the way the government and the army helped the West Bank settlement process even after the national security rationale for inserting a Jewish presence there had faded away. The civil liberties violations during the Intifada are well documented elsewhere but certainly bear repeating.

I do have some bones to pick with the book. Some parts could have been excised. For example, his Chapter 1 treatment of the medieval commissar has little relevance, for commissars were given power to shore up monarchies, not republics! Some of his other non-Israel examples indicating how democracies can trample on fundamental liberal precepts when struggling to survive could have been more pointed. For example, he cites the declaration of martial law in Hawaii after the Japanese bombed Pearl Harbor. A better American example would have been the forcible evacuation of people of Japanese descent (including native-born American citizens) from the West Coast in 1942. It is hard to understand why he spends so much time in his introduction defining the "rule of law" when that phrase turns out to be tantamount to "liberal democracy" and he uses "democracy" throughout the book much more than he does "rule of law". The editing could have been more thorough. For example on p. 82 a case is cited as "Al Rachman" and on p. 83 it is listed as "El-Rahman". A distinction between the Supreme Court sitting as a typical appeals court and that tribunal sitting as the High Court of Justice would have been helpful.

Considering Hofnung's detailed and impressive description of the ways in which Israeli national security measures have had an adverse impact on Israeli Arabs' fundamental rights, it is surprising that he fails to mention another policy, doubtlessly adopted for national security reasons, that has had a detrimental impact on them. This is that they are not permitted to join the IDF. On the face of it this would seem to be a boon to Israeli Arabs rather than a burden. However, veterans are entitled to, e.g., special educational and housing benefits. Moreover, many who serve in the army acquire the technical skills and contacts they need to carve for themselves a niche in the flourishing Israeli high-tech sector. He concludes (p. 295) that Israel has done an acceptable job of reconciling the demands of democracy and national security. This proposition is certainly a reasonable one. However, he should have defended it in more depth in his succeeding paragraphs since most of his own data indicate that the balance has tilted too far toward security.

Finally, it is disappointing that he fails to wrestle with the question of whether a nation declared to be specially reserved for one group (in Israel's case, of course, the Jewish people) can be a true democracy. For example, as he himself emphasizes, many of the "national security" and other anti-libertarian measures he describes have had a more severe impact on Arabs than on Jews. May not that to some extent be the consequence of the decision taken when Israel came into existence (see pp. 74-75) to make the country a "Jewish democratic state" rather than simply a "democratic state"? I cannot assert dogmatically that a nation calling itself a "Jewish" (or "Hindu" or "Muslim" or "Christian" or "Arab" or "proletarian", etc.) state cannot treat the "outgroups" fairly; but I think that the problem of whether such a nation can do so should be taken seriously by those who write about its politics.