TABLE OF CONTENTS

President's Message / Hadassa Ben-Itto - 2Peace on the Jordan / Daniel Reisner - 3

DOCUMENT

The Charter of Allah: The Platform of the Islamic Resistance Movement (Hamas) - 11

WORLD COUNCIL MEETING

Anti-Semitism in the UN: Religious, Racial or Political? / Morris B. Abram - 12ÒOne must Answer the Madman in the MarketplaceÓ / Irwin Cotler - 22Anti-Semitism in the Black Community in the U.S.A. / Nathan Lewin - 19Restitution of Jewish Private Property in Eastern Europe / Paul Feher - 21International Trade Agreements: The Uruguay Round / Stuart E. Eizenstat- 23Legal and Economic Aspects of Investments in Israel / Joseph H. Gross - 27Tax Planning for Foreign Investors in Israel / Yaakov Neeman - 30

The Tragedy of Divorce, The Ways Forward - The English Way / Myrella Cohen - 32

JEWISH LAW

Medical Examinations and the Right of Privacy / Sinai Deutch - 35

Prohibition on Racial Discrimination in Switzerland / Philippe A. Grumbach - 42

FROM THE NATIONAL LABOUR COURT OF ISRAEL

He who Pays the Piper Orders the Tune - 38

LAW

Severance Pay Law 5723-1963 - 41

CURRENT AFFAIRS

Czechoslovakian Association of Lawyers Apologizes to the Jewish Community - 15The U.K. Branch - Report of Activities - 18The Holy See and the State of Israel, A Dissenting Opinion / Haran A. Fainstein - 41In Memoriam - 44Neo-Nazi film to be withdrawn; Althans imprisoned- 44

BOOKS JUST RECEIVED - 26

The emblem on the front cover appearedon the official invitation to the signingceremony of the Jordan-Israel PeaceTreaty. It was provided courtesy of theartist, Mr. Dan Reisinger. Views of individuals and organizationspublished in JUSTICE are their own, andinclusion in this publication does notnecessarily imply endorsement by theAssociation.

JUSTICE is published by:The International Associationof Jewish Lawyers and Jurists10 Daniel Frish St., Tel Aviv 64731, Israel.Tel: 972-3-691-0673Fax: 972-3-695-3855

© Copyright (1994) by IAJLJISSN 0793-176X

Printed by Shmuel Press Ltd.27 Shoken Street, Tel Aviv,Tel: 972-3-682-2056.

No.4 Winter 1995

Editorial Board:Judge Hadassa Ben-IttoAdv. Itzhak NenerAdv. Myriam AbitbulDan PattirAdv. Rahel RimonProf. Amos ShapiraDr. Mala TaboryDr. Yaffa Zilbershats

Editor-In-Chief:Dan Pattir

Co-ordinating Editor:Adv. Rahel Rimon

Graphic Design:Ruth Beth-Or

The International Association of Jewish Lawyers and Jurists

No. 4January 1995

2

n November 11, 1994, 21 year old Hisham Ismail Hamad drove hisbicycle into an Israeli army checkpoint in the Gaza Strip, blowinghimself up and killing three Israeli army officers.

Six days earlier Hisham had explained to journalist Kenneth R.Timmerman, at a clandestine meeting of a group of activists whoclaimed allegiance to the Islamic Jihad, that one of his colleagues whohad perished in a suicide attack on Jews was not dead because "he hadgiven himself to Allah". Timmerman did not know that when hewould publish his account of the meeting in the Los Angeles Times,Hisham's portrait would be proudly carried in the streets of Gaza byhis family and friends, who would claim that another "martyr" hadgiven himself to Allah.

Other "martyrs" like Hisham had previously blown up a bus full ofcivilians in the middle of Tel-Aviv; kidnapped and later shot in cold blood Nachshon Waksman, anIsraeli soldier who had been trying to catch a ride to his military base; stabbed to death a girl in armyuniform waiting for a bus in Afula, injured 12 innocent bystanders near a bus station in Jerusalem, andcommitted many other atrocities against innocent Israelis.

Lately, the Hamas has made it a practice at its public gatherings to put on a show reconstructing thekidnapping and the shooting of Waksman. When the "actor" playing the role of the victim begs for hislife, the crowd laughs. The latest of these shows was presented on December 16, 1994, in front ofT.V. cameras and to the cheers of 50,000 participants, at a rally commemorating seven years since thefounding of Hamas.

Islamic Fundamentalism seems to be the most total, the most totalitarian, the most uncompromisingand the most dynamic form of anti-Jewish hostility today. There seems to be no chance of dialoguewith a fundamentalist movement whose their charter attributes to Jews, by their nature, every conceiv-able evil, and proclaims that Moslems are under an obligation, by order of their Prophet, to fight Jewsand kill them wherever they can find them.

But Jews and Israel are not their only target; at the same Hamas meeting, attended by Timmerman,one of the participants explained that "Islamic Jihad considers that Israel, Nazi U.S., Britain, Franceand the others are a cancer that must be removed". He warned that the Buenos Aires explosion wasonly one of the actions of the Islamic Jihad, and would be followed by others.

Gaza is not the only meeting ground of the Islamic Jihad. They meet in cities around the world andpublicly declare their intentions. Their bombs have killed and injured hundreds of innocent victimsnot only in the Jewish community centre in Buenos Aires but also in the towers of the World TradeCenter in New York. They have proved that they mean to implement their threats.

Under the protective umbrella of constitutional rights to free speech and assembly, these terroristsoperate openly, preaching their murderous doctrine, inciting their followers, recruiting new membersand training them in terrorist warfare. They cynically use the freedoms and rights protected by demo-cratic societies to undermine the fabric of these same societies. They use democracy in order toliquidate it. It has been done by others with tragic results which are still part of our collective memory.

We cannot fight them with their own weapons, for we are sworn to uphold the law. We must there-fore adjust our laws to the dangers facing us, and we must implement them fearlessly and effectively.Lawyers and jurists, legislators and courts, have an important part to play in this battle. From now onit will be a permanent item on the agenda of our Association.

PRESIDENT'SMESSAGE

O

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Lieutenant-Colonel Daniel Reisner is currently the IDF Deputy AssistantMilitary Advocate General for International Law and was a member of theIsraeli negotiating team on the Israel-Jordan Treaty of Peace. LtCol. Reisnerwas also a member of the Israeli negotiating team on the Israeli-PalestinianGaza-Jericho Agreement. The opinions and observations presented in thisarticle are the writer's own, and do not necessarily represent the position of theGovernment of Israel.

IntroductionThe Israel-Jordan Treaty of Peace, signed

October 26, 1994, marks the culmination ofthree years of delicate and often difficultnegotiations between representatives of bothcountries. In spite of the fact that the Treatyof Peace is, strictly speaking, a stand-alonelegal document, it would be both beneficial

and "legally correct" to take the intentions of the Parties intoaccount when interpreting its provisions. In this context, thepurpose of this paper is to provide the professional reader a briefoverview of the main provisions of the Treaty, with specialemphasis on the legal issues raised and (where possible)resolved therein and on the respective intentions of the Parties inthis regard.

The Treaty in the Contextof the Middle East Peace Process

Before entering into detailed discussion ofthe specific Treaty provisions, it is importantto understand the role of the Israel-JordanTreaty of Peace in the wider context of theMiddle East peace process. Subsequent to thesigning in 1979 of the Israel-Egypt Treaty of

Peace, it would appear that the Middle East Peace Processentered into a period of prolonged stupor, only to be awakened,12 years later, with the convening of the multi-national MadridPeace Conference on October 30th 1991.

The major practical result of the Madrid conference was thecommencement, in Washington D.C. , of bilateral negotiationsbetween Israel and three of her Arab neighbours (Jordan, Syriaand Lebanon) as well as with the representatives of thePalestinians. Due to political considerations the "Israel-JordanTrack" was merged with the "Israel-Palestinian Track" (as thesewere commonly known) in the framework of a joint Jordanian-Palestinian delegation.

In January 1992 a procedural arrangement was agreed upon,which enabled the functioning of both tracks, and as a resultIsraeli and Jordanian negotiators soon managed to formulate, inOctober 1992, a draft Common Agenda. This Agenda containednot only a "checklist" of the outstanding issues but also a briefunderstanding of how these specific issues would be approachedand a reference to the intended culmination of the talks in aTreaty of Peace.

The interconnectedness of the various "Tracks" is best exem-plified by the fact that the Jordanian negotiators refused formallyto finalize this Common Agenda until the surprise signing of theIsraeli-Palestinian Declaration of Principles of September 13th1993 ("the Oslo Agreement"). The Jordanians initialled theAgenda on the following day (September 14th), and from that

Peace on the Jordan

Daniel Reisner

In accordance with the practice established by JUSTICE so far in providing ourreaders with a legal insight into the Middle East Peace Process, JUSTICE is proudto publish this first authoritative analysis of the recently signed Israel-JordanPeace Treaty. JUSTICE will endeavour to bring more analyses of the PeaceProcess as it develops.

No. 4January 1995

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date negotiations with the Jordanians were formally separatedfrom the "Palestinian track" and commenced apace.

The second half of 1994 was to be the main chapter in thestory of the Israeli-Jordanian negotiations, against the backdropof achievements in the other ongoing "Tracks". Barely a monthafter the signing of the Gaza-Jericho Agreement between Israeland the PLO (on May 4, 1994), the Israeli and Jordanian delega-tions announced in Washington, on June 7th, 1994, the movingof the talks to the two countries and the attainment of sub-agendas on security, water and borders, in the framework of aneffort leading to a Treaty of Peace. The following month, theKing of Jordan and the Prime-Minister of Israel achieved thehistoric "Washington Declaration" of July 25th, 1994, which led,in three short but hectic months, to the formulation and signingof a Treaty of Peace between the two countries.

Another factor, the importance of which should not bediscounted, is the effect of the Israel-Egypt Treaty of Peace onits Israeli-Jordanian successor. In addition to its being the fore-runner of the Middle East Peace Process on a general basis, theIsrael-Egypt Treaty of Peace served also as a potential source forTreaty formulations which could be utilized by Israel andJordan, safe in the knowledge that these formulations had with-stood the test of fifteen years of peace in the context of theMiddle East. One example of this principle in action is Article29 of the Israel-Jordan Treaty of Peace, dealing with "Settlementof Disputes". This Article, which provides that all disputes "shallbe resolved by negotiations" and that any such disputes whichcannot be thus resolved "shall be resolved by conciliation orsubmitted to arbitration" is a word-for-word copy of the equiv-alent Article in the Israel-Egypt Treaty. Initial Jordanianhesitance to accept this phrasing, based on the contention that itleaves the method of choice between conciliation and arbitrationunclear, was overcome by the argument that this text had provenboth suitable and effective between Israel and Egypt, the well-known "Taba Arbitration" being satisfactory proof of itssuccessful implementation.

The Peace Treaty - General RemarksWithin its 30 Articles, 7 Annexes and multi-

tude of Appendices and Attachments, theIsrael-Jordan Treaty of Peace touches upon avariety of issues and subjects too numerous todiscuss in the limited context of this paper.While all these issues are undoubtedly impor-

tant and play a prominent role in the framework of Israeli-Jordanian relations, three issues may be identified as havingbeen the main cornerstones of the negotiations: security; theinternational boundary; and water. Only once agreement hadbeen reached on these three subjects, which were beingdiscussed concurrently in three separate negotiating committees,could the Treaty of Peace be finalized and agreed upon.

Prior to discussing these three issues in detail it would be bestto take notice of several of the general principles laid down bythe Treaty of Peace, applicable to the entire Treaty and to Israeli-Jordanian relations as a whole.

First and foremost of these principles is the statement, inArticle 1 of the Treaty:

"Peace is hereby established between the State of Israel and theHashemite Kingdom of Jordan..."

At first glance it may appear strange that no mention is made inthis Article of the cessation of the state of belligerency betweenthe two countries. The reply to this possible question is to befound in the Preamble to the Treaty, which states that:

"Bearing in mind that in their Washington Declaration of 25thJuly, 1994, they declared the termination of the state of bellig-erency between them;"

In other words, Israeli-Jordanian relations had evolved, withinthe framework of three months, from a state of belligerency toformal peace, with the Washington Declaration forming theconceptual bridge between the two states.

Another general subject of major importance is the effect ofthe Israel-Jordan Treaty of Peace on other international or multi-national agreements to which either country is party. In thisregard, Article 25 of the Treaty contains the followingprovisions:

"The Parties undertake to fulfil in good faith their obligationsunder this Treaty, without regard to action or inaction of anyother party and independently of any instrument inconsistentwith this Treaty." (First sentence of Article 25(2));

"Both Parties will also take all the necessary steps to abolish allpejorative references to the other Party, in multilateral conven-tions to which they are parties, to the extent that such referencesexist." (Article 25(4));

"The Parties undertake not to enter into any obligation in conflictwith this Treaty." (Article 25(5)).

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The Jordanian negotiators were initially reluctant to agree tothe part of Article 25(2) quoted above referring to instruments"inconsistent with this Treaty", due to their contention that nosuch instruments exist. In the spirit of compromise it was finallyagreed to leave the above sentence unchanged, but to add asecond sentence which states:

"For the purposes of this paragraph, each Party represents to theother that in its opinion and interpretation there is no incon-sistency between their existing treaty obligations and thisTreaty."

It is interesting to note that a similar issue arose during theIsraeli-Egyptian negotiations, finally solved in the eventualPeace Treaty by the addition of agreed minutes.

The question of what were to happen if one country's opinionor interpretation concerning such inconsistency was not acceptedby the other Party was left unanswered, and would probably bereferred to the procedure established under Article 29 of theTreaty for the settlement of disputes, discussed above.

SecurityThe subject of security is dealt with in

Article 4 of the Treaty, encompassing twoand a-half pages (out of a total of eighteen). Itwas initially assumed by Israel that, in addi-tion to the general Article, a special Annexwould be required in order to regulate thespecific security relations between the two

countries. As the negotiations advanced, it was agreed that suchan Annex would not be necessitated, and that any additionalsecurity-related subjects requiring further clarification and agree-ment would be addressed as part of the implementation processof the Treaty.

The basic understanding underlying both countries' under-takings in the field of security is best found in the provisions ofArticle 4(1)(a) of the Treaty, which states:

"Both Parties, acknowledging that mutual understanding and co-operation in security-related matters will form a significant partof their relations and will further enhance the security of theregion, take upon themselves to base their security relations onmutual trust, advancement of joint interests and co-operation,and to aim towards a regional framework of partnership inpeace."

Within this framework, the Parties addressed four main issues inthe field of security:

a. The prohibition of the use of force and of any other hostileactivity between the two countries;

b. The taking of all necessary measures "to ensure that acts orthreats of belligerency, hostility, subversion or violenceagainst the other Party do not originate from, and are notcommitted within, through or over their territory (hereinafterthe word "territory" includes the airspace and territorialwaters)" (Article 4(3)(b) of the Treaty).

The importance of this provision to Israel is obvious in lightof her past painful experiences in this regard, including theIraqi missile attacks against Israel's population centres duringthe 1991 Gulf War.

c. The prohibitions concerning - "joining or in any wayassisting, promoting or co-operating with any coalition,organisation or alliance with a military or security characterwith a third party, the objectives of which include launchingaggression or other acts of military hostility against the otherParty..."

and regarding - "allowing the entry, stationing and operatingon their territory, or through it, of military forces, personnelor materiel of a third party, in circumstances which mayadversely prejudice the security of the other Party" (Article4(4) of the Treaty).

While it is probably true that any activity in contravention ofthese provisions would also constitute a breach of the provi-sions of Article 25 of the Treaty (discussed above) thespecific inclusion of these prohibitions in the field of securitywas intended to guarantee to both countries (and especiallyto Israel) that neither country would evermore be a party,whether active or passive, to hostile activities against theother.

d. The co-operation and the taking of all necessary measures inthe prevention and combating of terrorism of all kinds,including cross-boundary infiltrations.

It is interesting to note that, as has been previously mentionedin other contexts, the formulation of these provisions was influ-enced by the provisions of the Israel-Egypt Treaty of Peace,which included similar prohibitions and undertakings, albeit indifferent language.

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The International BoundaryIn order to understand the provisions of

Article 3 of the Israel-Jordan Treaty of Peaceand the three Annexes and six Appendicesdealing with the delimitation and demarcationof the International Boundary, it would firstbe best to summarize the legal and historical

background to the boundary issue.The first (and from a legal perspective - only) attempt at the

definition of the boundary between Israel and Jordan was madein 1922, approximately twenty-five years prior to the establish-ment of the two States, by the British Government, then incontrol of both Mandatory Palestine and Trans-Jordan.

The boundary envisaged by the British administrators was aline commencing from a point on the Gulf of Aqaba some twomiles west of the town of Aqaba, continuing through the centreof the Wadi Araba (known in Hebrew as "Emeq Ha'arava") andthe centre of the Dead Sea, and from there along the centre ofthe lower Jordan and Yarmouk rivers, up to the boundary withthe (then) French controlled Syria.

Both of the subsequent delimitations of lines between the twocountries: the 1949 Armistice lines and the 1967 cease-fire lines,fell short of acquiring any legal significance vis-�-vis the delim-itation of the international boundary, due to the fact these werenever intended by the Parties to signify the location of the afore-mentioned boundary. (As an example of this fact, the 1949Israel-Jordan Armistice agreement specifically provided that theArmistice lines would not constitute the permanent InternationalBoundary between the two countries).

From a legal viewpoint, the 1922 Mandatory boundary defini-tion raises an interesting question concerning the applicability ofboundaries delimited by Mandatory governments to states estab-lished pursuant to the dissolution of the Mandatory government.

This question notwithstanding, in light of the above shownlack of other viable definitions of the Boundary, it is notsurprising that both delegations recognized the 1922 definition,from the onset, as the basic reference-point for the current delim-itation (and the resultant demarcation) of the internationalboundary .

In this context, Article 3 (1) of the Treaty, which is based onformulations agreed upon between the Parties during the nego-tiations on the Agenda concerning the boundary, states asfollows:

"The international boundary between Israel and Jordan is delim-

ited with reference to the boundary definition under theMandate as is shown in Annex I ( a ) . . . " ( Emphasis added -D. R.).

The role of the 1922 definition as a "reference-point", and not asa binding legal source for the location of the boundary, wasnecessitated primarily by two factors:a. The two Parties disagreed concerning the interpretation of

the 1922 definition regarding the actual location of the boun-dary in the Wadi Araba area;

b. Both Parties recognized the fact that due to the changeswhich had occurred on the ground since the establishment ofthe two States, any attempt at strict adherence to theMandatory definition would probably not be viable andwould form an insurmountable obstacle in the pursuit of anegotiated peace.

Due to its central role in the negotiations concerning the inter-national boundary, the Wadi Araba issue deserves furtherclarification.

As has been previously explained, the Mandatory boundarydefinition stated that the boundary crosses through the centre ofthe Wadi Araba. While both Parties were willing to accept thisdefinition, the words "centre of the wadi" were given differinginterpretations. The Jordanians, based on an interpretationadopted by several members of the British Government duringthe 1920's and 1930's, claimed that the "centre of the wadi"meant the line connecting the points of lowest levels in the wadi.The Israeli position, on the other hand, based on historical,geological, geographical, legal and cartographic evidence, wasthat the words "center of the wadi" should be given their ordi-nary and plain meaning - the median line of the wadi. The "lineof lowest levels" doctrine, Israel contended, was both legallyunfounded and practically impossible to implement (due, in part,to the fact that the Arava is actually comprised of two water-sheds, connected by a divide in which "lowest points" cannot bediscerned or conceived). The British interpretation on which theJordanians based their claim was shown as being only one ofseveral different interpretations adopted by British officials,none of which were authoritative or conclusive.

Another point of disagreement in this regard was the exactgeographic definition of the "Wadi Araba". While the Jordaniansheld that this term refers only to the relatively narrow water-sheds mentioned above, Israel claimed (based, in part, on

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Jordanian maps) that this term, should also be given its plain andnatural meaning, and should therefore be understood to denotethe entire Arava valley which is a continuation of the wide riftextending from Syria in the north to Africa in the south.

As was common throughout the negotiations, the final resultof the negotiations on this point was a compromise, according towhich both Parties, without forgoing their above detailed legalarguments, agreed to delimitate the boundary in the Arava on thebasis of an agreed map-line, similar (but not identical) to theBritish interpretation mentioned above, further incorporatingminor deviations necessitated by the changes which hadoccurred on the ground throughout the years.

In this regard itshould be stressedthat in all cases inwhich the Partiesrecognized the desir-ability of minordeviations from thebase-line in a mannerwhich would causeone Party to "lose"land, it was agreedthat this fact wouldbe taken into consid-eration further alongthe boundary.

The end-result ofthe ground boundarynegotiations may besummarized asfollows:a. The boundary commences from an agreed point on the Gulf

of Aqaba and continues in a northerly direction through the"centre" of the Arava, in accordance with the agreed linedetailed in Annex I(a) and its Appendices.

b. The boundary in the Arava sector shall be demarcated by theestablishment of jointly located and erected boundary pillars.Between each two adjacent boundary pillars the boundaryline shall follow a straight line. The exact location of theseboundary pillars will be defined in a list of geographical andUTM (Universal Transverse Mercator) coordinates jointlyprepared by the two Parties using Global Positioning System(GPS) measurements. This list of coordinates, once prepared,

shall be binding as regards the location of the boundary inthis sector.

c. From the Wadi Arava the boundary continues in a northerlydirection along the Salt Pans situated at the southern end ofthe Dead Sea and from there through the centre of the DeadSea, in accordance with the agreed line detailed in Annex I(a) and its Appendices. Once again, the exact location of theboundary will be based on a list of geographical and UTMcoordinates which, once prepared, will have precedence overall other sources concerning the location of the boundary inthis sector.

d. From the northern end of the Dead Sea, the boundarybetween Israel andJordan becomes ariver boundary,following the middleof the main course ofthe flow of theJordan River, up toits confluence withthe Yarmouk river,and from there alongthe middle of themain course of theflow of the Yarmoukriver, up to the Syrianboundary.

It was furtheragreed that the boun-dary line shall followgradual natural

changes in the course of the rivers (accretion or avulsion).Sudden natural changes in the course of the rivers (avulsion orthe cutting of a new river-bed) would be the subject of discus-sion in the Joint Boundary Commission established under theTreaty. And finally, artificial changes in the course of the riverswould not affect the location of the boundary, unless otherwiseagreed between the Parties.

Two areas which required specific and unique attention duringthe boundary negotiations were the areas of Naharayim andZofar. The former is an Israeli owned area situated in thevicinity of the confluence of the Yarmouk and Jordan rivers. TheZofar area is an agricultural area situated in the mostly-desert

Medal issued to mark the signing of the Peace Treaty between Israel and Jordan

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Arava, cultivated by Israelis. In both cases, the new delimitationof the international boundary caused these areas to fall underJordanian sovereignty. Due to this fact, and in light of the agree-ment between the two Parties to respect the Israeli private landownership (Naharayim) and private land uses (Zofar) in theseareas, whilst also respecting Jordanian sovereignty, a specialregime was implemented concerning these two areas.

The main principles of this special regime (detailed inAnnexes I(b) and I(c) of the Treaty) are as follows:a. The landowners, land users, their invitees and employees

would continue to enjoy unimpeded freedom of entry into,movement within and exit from these areas;

b. Uniformed Israeli police would be authorized to enter thearea for the purpose of investigating crimes or dealing withother incidents solely involving the Israeli landowners andland users, and their invitees and employees;

c. Jordanian law will apply to the areas, subject to thefollowing:l) Israeli law applying to extra territorial activities of

Israelis may be applied and enforced by Israel in theseareas;

2) Jordan will not apply its criminal laws to activities in theareas which involve only Israeli nationals.

d. The special regime will remain in force for a period of 25years, upon which time it shall be renewed automatically foradditional periods, each of 25 years duration. Either Partyretains the right of submitting a notice of termination of theabove special regime, one year prior to the end of the 25 yearperiod, in which case consultations shall be entered intobetween the two Parties concerning the future of the areas.At this point it should be stressed that the Treaty specificallyprovides that Israeli private land ownership rights in theNaharayim area will not be prejudiced by the fate of thespecial regime.

Another question which arose during the boundary nego-tiations was how to deal with that portion of the boundary, thewestern part of which falls within the West Bank, which iscurrently the subject of negotiations between Israel and thePalestinians? The solution to this problem was, once again,based on the Israel-Egypt Treaty of Peace, in which a similarproblem arose concerning the status of the Gaza Strip. As aresult, Article 3(2) of the Israel-Jordan Treaty reads as follows:

"The boundary, as set out in Annex I(a), is the permanent, secureand recognised international boundary between Israel andJordan, without prejudice to the status of any territories thatcame under Israeli military government control in 1967."(Emphasis added D.R.).

The Parties further agreed (Article 3(7) of the Treaty) that nego-tiations concerning the delimitation of their maritime boundaryin the Gulf of Aqaba would commence upon the signature of theTreaty, to be concluded within 9 months.

WaterThe last, but definitely not least, of the

substantive issues to be discussed in thisarticle is the subject of water, dealt with inArticle 6 and Annex II of the Treaty.

Perhaps the best expression of the funda-mental problem underlying the Israeli-

Jordanian water issue is the statement, in Article 6(3) of theTreaty:

"The Parties recognise that their water resources are not suffi-cient to meet their needs."

In other words, in the current situation water is a "sum-zerogame", whereby any attempt to solve water shortages by trans-ferring water from one Party to the other, results in an automaticequivalent shortage of water to the transferring Party.Recognizing this fact both Parties agreed, in Article 6(3) above:

ÒMore water should be supplied for their use through variousmethods, including projects of regional and internationalcooperation.Ó

With these facts in mind, the mutual goal of the Parties was tofind an acceptable solution to the water problem, whilst mini-mizing the negative impacts of such a solution on both Parties.

Before entering into a detailed discussion of the Treaty ofPeace provisions concerning water, two points of a generalnature are worthy of our attention.

First, during the last several decades, numerous attempts havebeen made, by international organizations and jurists, to codifythe rules applicable to the utilization of shared water resources.These attempts, which have yet to obtain general internationalapproval, have given birth to a plethora of legal terms associated

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with water use ("equitable utilization", "appreciable harm","water rights" etc.). From the onset of the negotiations it wasevident that any attempt to resolve the Israeli-Jordanian waterproblem through strict reliance on such legal terminology wouldbe doomed to failure, due to the fact that, in the final analysis,water disputes can only be resolved by the specific determina-tion of quantities and quality of water to be allocated, and not bymeans of general legal concepts. This rationale explains why theprovisions of the Treaty of Peace dealing with water issues tendto be more practical and operational, rather than legal, in nature.

Secondly, since the 1950's, several unsuccessful attempts havebeen made to establish an agreed water regime for Israel and itsneighbours, the most notable of which being the 1955 "JohnstonPlan", named after the American mediator Eric Johnston. Oneimportant facet of the negotiations leading up to the Treaty ofPeace was that these past attempts played no significant part inthe formulation of the Treaty provisions.

In this regard, it is important to take note of the preamble toArticle 6 of the Treaty, in which it is stated that the goal of theParties was:

"... achieving a comprehensive and lasting settlement of all thewater problems between them. " (Emphasis added - D.R. ).

The use of the words "comprehensive" and "all" in this context isimportant, signifying the intent of the Parties that the PeaceTreaty provisions are to be considered final and that no addi-tional water issues remain open between them.

The specifics of the agreements concerning water, laid downin Annex II, are relatively complex and too numerous to bedetailed in the confines of this article. Nevertheless, several key-features of the agreed arrangements can be identified.

The first issue worthy of the reader's attention is the subject ofwater allocations from the Yarmouk and lower Jordan rivers.The agreement may be summarized, in this regard, as beingcomprised of three distinct quantities to be allocated to Jordan,each totalling 50 million cubic meters (mcm) of water .

"The First 50 mcm" (as it was known during the negotiations)is intended to address the ''short-term" problems and iscomprised of the following:a. Israel will reduce its annual use of the Yarmouk river waters

from 65 mcm to an agreed 45 mcm; (Article I (1) of Annex II ).b. Israel agrees to transfer to Jordan, during the summer, the

amount of 20 mcm from the Jordan River, immediatelyupstream from the Deganya gates.

It should be noted that this commitment is contingent onIsraels ' pumping an equivalent 20 mcm from the Yarmoukin the winter (which is a part of Israel's above mentioned 45mcm). (Article I(2)(a) of Annex II).

c. Israel will transfer to Jordan an annual quantity of 10 mcm ofdesalinated water from the desalination of saline springs.Until the desalination facilities are operational, Israel agreedto supply Jordan with an equivalent quantity from the samelocation on the Jordan River as (b) above, during the wintermonths. (Article I(2)(d) of Annex II).

"The Second 50 mcm" is intended to address the "medium-term" needs and contains two projects:a. Israeli-Jordanian cooperation in the establishment of a diver-

sion/storage facility on the Yarmouk river directlydownstream of the existing diversion point; (Article II(l) ofAnnex II).

b. Israeli-Jordanian cooperation in the establishment of a waterstorage system on the lower Jordan River, between itsconfluence with the Yarmouk and its confluence with TiratZvi. (Articles I(2)(b) and II(l) of Annex II).

As has been stated above, the concept underlying these twoprojects was the making available to Jordan of an additional 50mcm of water. As regards the lower Jordan River project (b)above, the Treaty specifies the minimum average storage for useby Jordan as 20 mcm. It is important to note that the Treaty alsoacknowledges potential utilization by Israel of these facilities.An additional fact which must be taken into account is the highestimated cost of these projects (approximately 100 million U.S.Dollars), which will have to be raised from foreign sources.

"The Third 50 mcm" is intended to address the "long-termview" and is dealt with in Article I(3) of Annex II, whichprovides:

"Israel and Jordan shall cooperate in finding sources for thesupply to Jordan of an additional quantity of (50) MCM/year ofwater of drinkable standards. To this end, the Joint WaterCommittee will develop, within one year from the entry intoforce of the Treaty, a plan for the supply to Jordan of the abovementioned additional water. This plan will be forwarded to therespective governments for discussion and decision."

Another issue of major importance is the subject of the Aravawells. As a result of the international boundary delimitation

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ConclusionThe Israel-Jordan Treaty of Peace is, undoubtedly, a milestone

in the history of Israeli-Jordanian relations and in the history ofthe war-plagued Middle East, in general.

In this regard, it is only fitting to quote the words of the Kingof Jordan, on the occasion of the initialling of the Treaty ofPeace in the Royal Palace in Amman:

"In this Treaty there are no losers, only winners."As the countries embark on the lengthy process to implement

the provisions of the Peace Treaty, it is only to be hoped that thesame atmosphere of goodwill and mutual co-operation willcontinue to prevail between them.

discussed above, approximately 15 wells currently operated byIsrael in the Arava will, subsequent to the planned Israeli with-drawal in February 1995, be situated within Jordanian territory.As these wells are of prime importance to the Israeli settlementsin the Arava, the two countries agreed to implement thefollowing special arrangements, laid down in Article IV ofAnnex II:

a. These wells, although under Jordanian sovereignty, willcontinue to supply water to Israel. For this purpose, theyshall be operated and maintained by Israeli selected compa-nies, contracted by Jordan, at Israel's expense;

b. In case of any of these wells failing in the future, Israel willbe entitled to drill, operate and maintain an equivalentreplacement well, in Jordan.

c. If found to be hydrogeologically feasible, Israel will be enti-tled to increase its pumping from wells and systems inJordan by an additional 10 mcm/year. This increase is to becarried out within five years from the entry into force of theTreaty.

An additional provision worthy of note in the water Annex tothe Treaty is Article V, which states that artificial changes in thecourses of the Jordan and Yarmouk rivers may only be made bymutual agreement. The Article further provides that each countryis obligated to inform the other, six months ahead of time, of anyintended projects which are likely to change the flow, or qualityof the flow, of either of these rivers along their common boun-dary. Such projects will be discussed in the Joint WaterCommittee "with the aim of preventing harm and mitigatingadverse impacts such projects may cause." (Article V(2) ofAnnex II).

Additional topics addressed in the water Annex include:protection of water resources and facilities; prohibition of thedisposal of wastewater into the Yarmouk and Jordan rivers; co-operation and exchange of relevant data and the establishment ofthe Joint Water Committee.

As a final point it is worth mentioning that while the Treatydoes contain several provisions concerning the potential uses ofunused waters flowing in the Yarmouk and Jordan rivers(Articles I(2)(b) and (c) of Annex II), this subject may also berelevant to the future negotiations with the Palestiniansconcerning the West Bank.

The original signatures to the Peace Treaty.

January 1995No. 4

11

DOCUMENT

The Charter of the Hamas has 36 articles, supported byquotations from the Quran. To gain an insight into the programof the Hamas movement, it is necessary to look at its publicizedplatform:

* The Hamas is committed to Holy War for Palestine againstthe Jews, until the victory of Allah is implemented.

* The Land must be cleansed from the impurity and vicious-ness of the tyrannical occupiers.

* Under the wings of Islam, coexistence is possible withmembers of other faiths. When Islam does not prevail thenbigotry, hatred, controversy, corruption and oppressionprevail.

* The Muslims are under obligation, by order of their Prophet,to fight Jews and kill them wherever they can find them.

* The Hamas strives to establish an entity where Allah is theultimate goal, the Quran its constitution, Jihad (Holy War) itsmeans, death for the cause of Allah - its most sublimeaspiration.

* The Land of Palestine is a holy Islamic Endowment (Waqf)until the end of days. Thus, no one can negotiate it away.

* It is the personal religious duty (Fard' Ayn) of each indi-vidual Muslim to carry out this Jihad in order to bringredemption to the Land.

* The Hamas is opposed to all international conferences andnegotiations and to any peaceful settlements; for sovereigntyover the land is a religious act and negotiating over it meansyielding some of it to the rule of Unbelievers.

* The Jews have taken over the world media and financialcenters. By fomenting revolutions, wars and such move-ments as the Free Masons, Communism, Capitalism andZionism, Rotary, Lions, B'nai B'rith etc., they are subvertinghuman society as a whole in order to bring about its destruc-tion, propagate their own viciousness and corruption, andtake over the world via such of their pet institutions as theLeague of Nations, the U.N., and the Security Council. Theirschemes are detailed in the Protocols of the Elders of Zion.

* The Hamas opposes the PLO secular state in Palestinebecause it would be anti-Islamic is essence. But if the PLOadopts Islam as its path, then all members of the movementwill become soldiers of Liberation and will "produce the firethat will smite the enemy".

The Charter of Allah: The Platform ofthe Islamic Resistance Movement

(Hamas)

This material was supplied by Doctor Raphael Israeli of the HebrewUniversity, Jerusalem.

No. 4January 1995

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nti-Semitism is like a mutating virus, changing formbut never purpose. Anti-Semitism, challenged as areligious manifestation due to the decline of the Ageof Faith and changes in Church doctrine, and discred-ited as a racial epithet by the exposure of the

Holocaust, is alive and well and even respectable in a politicalform disguised as anti-Zionism in the UN. I see time and againin the UN so-called "good people" who mask anti-Semitism inthe form of anti-Zionism, an ultimate expression of Jewishaspiration.

The political disguise of anti-Semitism has been unmasked.Per Ahlmark, the former Deputy Prime Minister of Sweden andUN Watch board member, has said that "My main concern hasalways been that the anti-Zionist campaign has in fact mergedwith traditional anti-Semitism." Martin Luther King, Jr. has said,"When people criticize Zionism they mean Jews; you're talkinganti-Semitism."

Permutations of Anti-SemitismReligious anti-Semitism has its early roots in monotheism,

which inherently repudiated the ancient pagan gods. In ancienttimes, Moses - hailed for his ideas - was also viewed as thecreator of a form of religion that was strange and which imposed

a very heavy moral burden. Jews' religious practices separatedthem from other peoples.

As the place of religion declined in the 19th century, and therole of science elevated, anti-Semitism needed a new form. It isargued that the term anti-Semitism was coined in Germany inthe 1870's because intellectuals were searching for a secular,pseudo-scientific term to express animosity against the Jews butone that avoided the term "Jew". The term, "anti-Semitism" wasnon-religious and therefore, more acceptable.

Anti-Semitism is distinctive. It is defined in the EncyclopaediaBritannica as "hostile expressions or actions against Jews whichhas been a more or less constant feature of Jewish life in theDiaspora." The term itself is a misnomer because it has nothingto do with Semites; the term has never been used to describediscrimination against Arabs. The contemporary argument byArab diplomats that anti-Semitism embraces Arabs as well ismerely an attempt to dilute the significance and distinctivenessof anti-Semitism.

In the 19th and early 20th centuries, after centuries of segrega-tion, Western European Jews were finally admitted intomainstream society. Some became assimilated and ancientcharges of the peculiarities of the Jews based on their religiouspractices or their engagement in "dishonourable" trades were nolonger valid. How then to justify anti-Semitism? By constructinga scientific, genetic argument that could not be disproved. Thus,the Nazis' theory of racial superiority. Unlike past anti-Semitism,Jews could not escape persecution by conversion. As one of ahandful of Jews in Fitzgerald, Georgia, I knew that all I had todo to become accepted was to convert.

Anti-Semitism in the UN:Religious, Racial or Political?

Morris B. Abram

Ambassador Morris A. Abram, an active member of our Association, is theformer U.S. Permanent Representative to the United Nations and otherinternational organizations in Geneva and is the Chairman of UN Watch.

A

In the last issue of JUSTICE we reported on the Jewish-Christian dialogue withinthe framework of the World Council Meeting of our Association held in Rome inJune 1994. In this and the next issue we report on the other subjects of debate:anti-Semitism worldwide, restitution of Jewish property and legal and economicaspects of investment in Israel.

WORLD COUNCIL MEETING

January 1995No. 4

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Genetic anti-Semitism is still prevalent, demonstrated by thephysical caricatures of Jews that permeate the media. But racismhas become a dirty word, especially after the fight to eradicateapartheid in South Africa. Much of the democratic world andinternational bodies have passed anti-racism laws andconventions.

Today, the only form of anti-Semitism acceptable in the "bestcircles" is political. Of course political attacks on nations arecommonplace and of course Israel has its flaws; but no one whodislikes Britain proposes to eradicate it. Anti-Israel statements inthe UN, however, are often a cover to express anti-Semitism.

Political Anti-SemitismFor fifty years, the UN, founded in the wake of Hitler's crimes

has been a center for criticism of Israel, the democratic statefounded by and for Hitler's victims: the Jewish people. From thedate of its establishment, Israel has been subjected to aggressionin three wars, in none of which has the UN Security Councilever condemned the true aggressors while repeatedly over-looking condemnable conduct by Israel's Arab neighbours.Rather, the UN Security Council has treated Israel so as to elicitrepeated vetoes by the United States, if not for which Israelwould have become an enfeebled pariah. In an era of self-determination and decolonization, Israel is portrayed as thevictimizer.

The UN has become the center of modern attack on the Jewsdespite the fact that the modern human rights movement was areaction to Nazi bestiality in World War II characterized by thepersecution and genocide of the Jews. Yet, the closest the UNcame to condemning the Holocaust was in a 1960 SecurityCouncil resolution criticizing Israel for the abduction of AdolphEichman. The resolution noted "the universal condemnation ofthe persecution of the Jews under the Nazis" and concern thatEichman be brought to appropriate justice for his crimes.Notwithstanding, Israel was denounced for its violation ofArgentine sovereignty. We heard not one word from the SecurityCouncil when the U.S. abducted Panamanian dictator ManuelNoriega.

The Holocaust gave rise to the incorporation of human rightsprinciples into the UN Charter and resulted in the InternationalBill of Rights and the principal human rights conventions. Yet,no single UN human rights declaration, covenant or conventioncondemns explicitly or even refers expressly to anti-Semitism.The Jews were probably the first minority in history, and they

have consistently come to the assistance of other minorities andyet they are still denied equal treatment themselves.

One should not underestimate the importance of the UNparticularly in shaping world public opinion; its words areweapons. If the world had heeded Hitler's words in Mein Kampf,it would have known they were to be translated into action. TheUN is the only world-wide institution and, however weak it maybe at "sav[ing] succeeding generations from the scourge of war",it remains a respected organization. If an automatic majority cancondemn Israel and Zionism, even good people will ask "whatkind of people comprise the Jewish state?" and evil people willmerely add "I told you so." Israel is thereby isolated from normalpolitical life much in the same fashion as were the Jews segre-gated from civil life from ancient times until fairly recenthistory. As a young student recently told me, "Israel has becomethe Jew of the United Nations."

And the UN's anti-Israel bias is unfortunately echoed byhighly acclaimed non-governmental organizations.

Since 1948, well over five pounds, 2.3 kilos, of resolutionscondemnatory of Israel have been adopted by various UN organsdespite the democratic traditions and the rule of law maintainedby Israel during wars, terrors and even scud missile attacksduring the Gulf War. There are two special committees of theGeneral Assembly and a division of the UN Secretariat dedi-cated exclusively to the pillorying of Israel and often of itsliberating ideal, Zionism. Special sessions, special rapporteurs,and special investigators expend millions of scarce UN dollars toundermine the reputation of the Jewish state.

Indeed, it has been subjected to far more unfavourable treat-ment than any state in the UN, including the most brutaldictatorships and states in which savagery is rampant, contraryto the equality of nations guaranteed by the UN Charter. AndIsrael cannot serve on the UN Human Rights Commissionbecause Israel has been denied membership in any regionalgroup, the formal system by which UN member states partic-ipate in shaping UN policy, while Libya, Iraq, Iran, Syria andCuba sit in judgment of the human rights records of others.

Traditional Anti-Semitism PersistsSometimes even undisguised anti-Semitism erupts in the UN.

I believe that the UN's failure to label anti-Semitism ananathema, as it has other forms of discrimination such as apart-heid, has contributed to the toleration of outright anti-Semiticexpressions in UN chambers.

No. 4January 1995

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In 1993 in the UN Human Rights Commission, the PLO repre-sentative circulated a letter which said "It would appear thatIsraeli occupation authorities, who are today celebrating the Dayof Atonement, are never fully happy even on religious occasionsunless their celebrations, as usual, are marked by Palestinianblood." There was no condemnation of the PLO letter, eitherfrom the Commission's Chairman or from the Western democ-racies represented in the Commission proceedings.

In 1992, the Syrian representative to the Commission waiveda book authored by its Minister of Defence which repeated theinfamous Damascus blood libel of 1841 declaring that Jews usethe blood of Christian children to make Matzot, a chargedenounced by the Sultan 150 years earlier. The Commission didnot react, the Western caucus refused to become involved and itrequired intense consistent pressure by the U.S. over months toobtain a weak statement of disapproval from the Commission'sChairman.

Imagine a UN body calling all Africans cannibals?Indeed, the ancient lies of anti-Semitism are now permanently

stamped on the UN's consciousness, pronouncements andactions.

The Final Declaration of the 1993 Vienna Conference onHuman Rights condemned every form of racism and discrimina-tion, but refused to condemn anti-Semitism.

In March, 1994, the UN Human Rights Commission, at theinitiative of UN Watch, found its voice to expressly condemnanti-Semitism as a contemporary form of racism. TheCommission resolution appointed a special rapporteur to inves-tigate incidents of anti-Semitism and governmental measures toovercome them. Now we have the beginnings of a mechanism toinstitutionalize the battle against anti-Semitism at the worldbody.

The ultimate outrage at the UN was the passage of the"Zionism equals racism" resolution in 1975 with the support of67 member states, equating Jewish aspirations with condem-nable racism.

This is not surprising because in 1972, the murderer Idi AminDada, tyrant of Uganda, received a standing ovation at theGeneral Assembly when he called for the expulsion of Israelfrom the UN and the destruction of the Jewish state. Not unliketoday, even European states did not rise to the defense of Israelfrom scurrilous attack by a political monster.

The repeal of the "Zionism equals racism" resolution is not,however, an endorsement of Zionism.

Treatment of Israel at the UN Following theIsrael/PLO Agreement

Now, "Zionism equals racism" has been repealed, the peacenegotiations are moving forward and Israel's bilateral relationsare good. Have these milestones translated into change in theUN's treatment of Israel?

It is encouraging that the General Assembly and the UNHuman Rights Commission adopted resolutions endorsing theIsrael/Palestinian peace process. There has been some modera-tion of the vituperative language in some traditional anti-Israelresolutions and the annual sum of these is not as great as in1991. However, at the last General Assembly, convened immedi-ately after the Rabin-Arafat handshake, there were 21 anti-Israelresolutions on which the US felt obliged to vote in the negativeon 16 and abstain on 4.

In November 1993, the Arab states signed an InternationalTelecommunications Union Conference declaration indicatingthat their signature did not imply recognition of the "Zionistentity"; the Human Rights Commission in March adopted fiveresolutions denouncing Israel; and the Security Council's reac-tion to the Hebron killing is contrary to its silence on acts ofterrorism against Israelis and other similar attacks worldwidesuch as in India and very recently in Iran, where a bomb in acrowded Muslim shrine killed 70 people.

The Hebron killing is now the focus of studies by NGOs andthe UN Committee on the Elimination of Racial Discriminationintends to convene a special examination of Israel on the inci-dent. The UN reaction comes despite Israel's immediateappointment of a high level, independent commission toinvestigate.

The recent International Labor Organization Conferenceconvened a special session on the conditions of Palestinianworkers, the Conference's only special plenary session on aparticular issue. Over twenty representatives of workers,employers and governments castigated Israel as if the peaceprocess and Palestinian autonomy were mere footnotes incurrent affairs. The UN is simply lagging far behind presentevents.

Israel's Bilateral v. Multilateral RelationsThe establishment of diplomatic relations with Israel does not

mean that underlying prejudices have been scuttled. At the

continued on p. 15.

January 1995No. 4

15

Second Vatican Council in 1962-65, the Roman Catholic Churchformally repudiated the charge that Jews are responsible for thedeath of Christ and condemned genocide and racism as un-Christian. But even the recent and welcomed Vatican recogni-tion of Israel cannot wipe out thousands of years of anti-Semitictradition.

The better test is the behaviour of states toward Israel in multi-lateral bodies. Bilateral relations may reflect trade and similarpurposes which are not necessarily carried over into the UN andother multilateral forums where political opinions are formed.The true test is multilateral - actions in public. Unfortunately, theUnited States often stands alone in the Security Council andother UN forums in its defence of Israel. Other states must speakout, not hide behind abstentions.

The flourishing of anti-Semitism and its transmission throughthe UN pulpit is of deep concern to all mankind, for as MinisterAhlmark has explained "Anti-Semitism always starts with theJews; it never stops with the Jews... and finally [it] destroysdemocratic institutions and the rule of law."

Anti-Semitism has endured for 3000 years. It is not likely tobe overcome by any enlightenment, the revulsion of theHolocaust, by granting autonomy to the Palestinians or bypassing UN resolutions. Anti-Semitism defies reason; it is toomuch to expect that it can be eliminated, but it surely can beconsiderably contained.

In 1939, following the invasion of Czechoslovakia byGermany, the Association of Czech Lawyers "Vsehrd" expelledtheir Jewish colleagues from the organization. In the followingletter dated 31 October 1994, sent to the Chief Rabbi ofCzechoslovakia, the Czech Association formally apologizes forthis action. Vsehrd has also undertaken to confer honourarymembership on living and deceased Israeli lawyers of Czechorigin who were expelled from the organization. Those wishingto regain their membership should apply to the CzechAssociation of Lawyers.

Mr. Karol Sidon,Rabbi of Prague and the Czech Lands,

Dear Sir,Would you kindly accept our apology to you and all the

people of the Jewish nation and religion living in the CzechRepublic for the fact that in the grim period of the secondCzechoslovak Republic our predecessors in the Association of

Czech Lawyers "Vsehrd" expelled their Jewish colleagues fromthe Association, which we consider an immoral action.

The above-mentioned exclusion cannot be excused either onthe grounds of errant ideology of certain individuals, or by themajority who gave up under pressure. The decision of our prede-cessors has to be condemned even more strongly if we bear inmind that they were lawyers and that it was therefore their dutyto adhere to the fundamental legal principles.

We ask for your forgiveness and at the same time we wouldlike you to kindly inform all the relatives of our expelledcolleagues, whether they live in the Czech Republic, Israel oranywhere in the world, about the position that we assumetowards the exclusion.

In the future we will always act against any discrimination ofour Jewish colleagues. We hope for a lasting cooperation onprinciples of democracy, humanity and respect for everyindividual.

Yours truly,Petr Pol�kChairman of the Association

Czechoslovakian Association of Lawyers Apologizes tothe Jewish Community

continued from p. 14.

No. 4January 1995

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his is a critical historical juncture in the struggle forhuman rights, a "Dickinsonian" universe, where, onthe one hand, there has been a literal explosion inhuman rights, where human rights has emerged as theorganizing idiom of Catholic-Jewish discourse, or, to

paraphrase, as the "secular religion" of our times. Witness someof the examples of the past five years: where democracy is onthe march from Central Asia to Central America; where theunification of Germany, spoken of as being unthinkable fiveyears ago, has now become a reality; where Mandela has beenliberated from a South African prison and South Africa itself hasnow been liberated from apartheid; where the Zionism equalsracism resolution has been repealed and the Vatican and Israelhave entered into diplomatic relations and more than 140 coun-tries have also taken the same step.

Yet, at the same time, in a type of Dickinsonian dialectic, theviolations of human rights continue unabated. The homeless ofAmerica, the hungry of Africa, the imprisoned of Asia, can beforgiven if they believe that the human rights revolution hassomehow passed them by, while the silent tragedy of the Kurds,the ethnic cleansing of the Balkans, the horror of Sarajevo, theagony of Sudan and Rwanda, are metaphor and message for theassault upon, and indeed abandonment of, human rights in ourtimes.

What is true of the violation of human rights and the humancondition generally also continues to find expression in whatmay be called the "graffiti of the Jewish condition": of Jewhatred, and Holocaust denial.

Some examples:

¥ In Russia - thenew extremists,the Russian right,blame the Jewsfor bringingabout commu-nism, and the oldextremist commu-nist left, blamethe Jews forbringing aboutthe fall ofcommunism, andboth right and leftanchor their argu-ments in Holocaust denial.

¥ Coded anti-Semitic discourse enters the framework ofWestern political culture and conversation - be it the wordsof Le Pen of France speaking of the Holocaust as a "detail",or the words in America of David Duke on the right orFarrakhan on the left, or be it the characterization in Englandof Holocaust denier David Irving as a "distinguished Britishhistorian".

¥ In United Germany neo-Nazis stalk the street in search ofl'etrangers (foreigners), torching Holocaust memorials intheir path.

¥ In neutral Sweden, "the most scurillous anti-Semitic poisonsince de Strummer", to use the words of former DeputyPresident Per Ahlamrk, continues to find expression in theradio broadcasts of Radio Islam.

¥ In Duke University, in the U.S., the University newspaperpublished an advertisement denying the Holocaust and theUniversity President said that the University had no otherchoice because of the First Amendment and protected

ÒOne must Answer the Madman in theMarketplace lest the Madman be BelievedÓ*

Irwin Cotler

Professor Irwin Cotler of McGill University, Montreal, Canada is adistinguished human rights activist. He is Special Counsel of our Association.

* UN Secretary-General Doug Hammerskojld.

T

January 1995No. 4

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continued on p. 18.

speech, while the same newspaper refused to publish anadvertisement which was discriminatory against women.Holocaust denial is protected speech, discrimination againstwoman is not.

What is common to the Holocaust deniers Keegstra andZundel in Canada, to Le Pen and Faurisson in France, toFelderer and Radio Islam in Sweden, to Smirshnov Ashtosvili inRussia, to David Duke and Farrakhan and Khalid Muhammad inthe United States, to David Irving in England is that they are allpart of the endemic enduring Jew hatred with Holocaust denialas its contemporary idiom and cutting edge.

Just as the Holocaust was not only a tragedy of the Jews but atragedy of civilization in which the Jews were victims, so too isdenial of the Holocaust not just an assault on Jewish memory butan assault on Jewish values and on the history, the truth, theintegrity, and the memory of civilization itself.

It may appear to some that we are addressing an issue that isnot so serious: Why give the Holocaust deniers the credibility ofthe subject-matter for discussion?

Well, public opinion polls indicate that one-third of allAmericans are either ignorant of, or have mistaken views about,the Holocaust; i.e., one-third of all Americans are potentiallyvulnerable to the Holocaust-denial movement. The same pollsalso show that one-third of Americans believe that Jews have toomuch power, carp too much on the Holocaust and seek to makepolitical capital out of the Holocaust. So the support with respectto the understanding of the Jewish experience may be said to bevulnerable to the Holocaust-denial movement.

Characteristics of the Holocaust-DenialMovement1. It is not a group of misfits although there are misfits among

them. Rather, it is a highly organized, sophisticated, inter-connected movement, which cuts across region, ideology,party, and border. It is linked by communications and themost sophisticated computer technology.

2. It is not just a national phenomenon in Canada or the U.S.Rather, it is an escalating international phenomenon in NorthAmerica, Latin America, Europe, Asia, etc., even findingexpression in countries without Jews. It has become the newage metaphor for anti-Semitism in countries without Jews,such as Japan.

3. The Holocaust-denial movement seeks to use the legal

process as an instrument for amplifying and, indeed, vali-dating the movement. The Holocaust-denial movement seeksto convert trials of Holocaust deniers into trials of theHolocaust itself. It converts these trials, in whatever coun-tries they take place, into international gatherings of theHolocaust-denial movement, it seeks to have Holocaustdeniers admitted as expert witnesses in the course of the trialitself (e.g., Swedish convicted felon Felderer testifying as anexpert in the trial of Canadian Ernst Zundel, and describingAuschwitz as a "recreation center").4. The most sinister feature of the movement has been the culti-

vation of an academic veneer. Its use of scholarship,publications and institutes in order to give itself a sense ofoffering an intellectual validation to the cause. It offers whatis calls an "alternative scholarship" posing as intellectualdissidents running against the establishment orthodoxy ofHolocaust. It holds out to scholars, in a kind of subliminal,intellectual psychological appeal, that scholars andacademics owe it to themselves to examine the real truthabout the Holocaust.

5. In the former Soviet Union and Eastern Europe, right-winganti-Semitic forces seek to rehabilitate old Nazis. At thesame time they seek to resurrect the classic scapegoat ofhistory, namely, the Jew, as the person accountable for thecatastrophies in their countries. This leads to one of the mostscurrilous features of the Holocaust-denial movement.Namely, the Holocaust-denial movement purports to beexposing an international criminal conspiracy of Jews whenin effect it is asserting its own international criminalconspiracy to cover up the Holocaust. Thus, it not onlydescribes the Holocaust as a hoax, but also maligns Jews forfabricating the hoax; accuses them not only of extracting butalso extorting money, influence and power from innocentGermans. Soviets and the Allies are accused of havingcommitted war crimes greater than Germans and so one hasthe "banalization" of the Holocaust; as the German philos-opher Nolte put it, "you have to understand Auschwitz asreally being a response to the Gulag".

What Must be Done by Way of Response?1. It is incumbent upon governments and elite sectors to

unequivocally condemn the Holocaust-denial movement inall its forms.

No. 4January 1995

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continued from p. 17.

2. One must begin to take the necessary legal initiatives withrespect to indicting incitement to racial hatred.

3. One needs a coalition of conscience where the struggleagainst anti-Semitism is not one fought by Jews alone butone fought as part of a common cause.

4. Anti-Semitism and Holocaust denial must be held out to benot just an assault on Jews or Jewish memory but an assaulton the democratic process itself.

5. Making Holocaust denial a crime will protect its victimsfrom the serious psychological if not physiological injurythat results from this racial incitement.

6. We have to make the Holocaust a compulsory part of thecurriculum. In many elementary schools and high schools inthe United States, Canada and Europe only one or two

sentences are devoted to the historiography of the Holocaust,another instance of "banalization".7. One has to press for restitution of Jewish communal property

as part of the fidelity to history and to law.8. Bringing Nazi war criminal to justice must be seen as part of

Holocaust historiography. Every time we bring a Nazi warcriminal to justice we strike a blow against the Holocaust-denial movement.

This must be our task: to speak on behalf of those who cannotbe heard, to bear witness on behalf of those who can no longertestify, to unmask the industry of lies and the bearers of falsewitness as we protect the integrity of memory and of remem-brance, so that the truth can be learned, justice served and humandignity realized.

The U.K. Branch of our Associationheld a series of lectures during 1994 on avariety of subjects. The distinguishedlecturers were:

* Lord Jakobovits, the Emeritus ChiefRabbi, who spoke on "Jewish MedicalEthics".

* Sir Ivan Lawrence Q.C., M.P., whospoke on "Race and the Law".

* Lord Lester of Hane Hill Q.C., whospoke on "Taking Human RightsSeriously".

* Professor Jackson who spoke on"Judaic-Christian Contribution to theLaw of Evidence".

A lively discussion followed each ofthese lectures.

The highlight of the year was the galadinner held in October in the highlyprestigious venue of the candlelit ball-room of London's Claridges Hotel. It wasattended by over 300 members and guests,including many Judges, Queen's Counsel,

Barristers, Solicitors, Magistrates andacademics. The Guest of Honour was theLord Chief Justice of England, the LordTaylor of Gosforth, himself a member ofthe Jewish Community. Lord Taylorpraised the aims and work of theAssociation, but also stressed the impor-

From left to right: Patricia May Q.C., Hon. Secretary of the British Section; Rt. Hon. Lord Woolf, Hon.President; Judge Ben-Itto; Lt.Col. Mordechai Cohen; Judge Myrella Cohen Q.C.; The Lord Chief JusticeLord Taylor; Judge Israel Finestein Q.C., Chairman of the British Section; Mrs. Finestein.

The U.K. Branch: Report of Activitiestance of fighting against all forms ofracism wherever it arises.

The spectacular event was hosted by theRt. Hon. Lord Woolf - Honourary Presidentof the U.K. Branch - and Lady Woolf.Judge Hadassa Ben-Itto conveyed greetingsfrom the International Association.

January 1995No. 4

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brief extract from a volume entitled The SecretRelationship Between Blacks and Jews, under theheading "Jews and the Rape of Black Women",reads as follows:

"Jews engaged in the widespread practice of thesexual exploitation of dependent female slaves, such was thepractice of Jews since the Middle Ages..."

And under the heading "Jews, Blacks and the Law":

"Much like the Nazis of the concentration camps of Auschwitz,Treblinka or Buchenwald, Jews served as constables, jailers andsheriffs, part of whose duties were to issue warrants against andtrack down Black freedom seekers. They assiduously enforcedthe slave codes designed to safeguard against the possibility ofrebellion".

This is a book with 1,375 footnotes. On the front page it says:

"Blacks and Jews have recently begun to question their rela-tionship and its strategic role in their individual development.This report is an examination of documented historical evidenceand is intended to provide an historical perspective for intel-lectual debate of this crucial social matter."

And the opening says that Jews:"have been conclusively linked to the greatest criminal endea-vour ever undertaken against an entire race of people, a crimeagainst humanity, the Black African holocaust. They were partic-ipants in the entrapment and forceable exportation of millions ofBlack African citizens into the wretched and inhuman life ofbondage for the financial benefit of Jews."

One may say tooneself: "this is acrazy book", "this issomething nobodycan believe andnobody can take seri-ously". This bookhas been out for 3years. On July 20th1992, the New YorkTimes took theexceptional step, ofpublishing a full page op ed article, written by Henry LouisGates Jr., who is the Director of the African Studies Dept. atHarvard University. Professor Gates says of this book, "soberand scholarly looking, it may well be one of the most influentialbooks published in the Black community in the last 12 months."At the same time, Professor Gates strongly attacks the book andcalls it a "cunning, deceptive volume aimed at the Black intel-ligentsia and is an effort to encourage them in the direction ofBlack anti-Semitism".

The book, one of the most sophisticated instances of hate liter-ature yet compiled, was prepared by the Historical ResearchDepartment of the Nation of Islam. It charges that the Jews werekey operatives in the historic crime of slavery, playing an inor-dinate and disproportionate role and carving out for themselves amonumental culpability for slavery and the Black holocaust.

It is almost two years since this op ed article appeared in theNew York Times and the book has had its impact upon Blackcolleges. Recently, a Jewish liberal concerned about the hate thathas spewed forth from the Black community in connection withthe Jews, published an article in Moment magazine, and he says"I received a call from a Black student who had read Farrakhan'sSecret History of the Jews, describing how the Jews had

Anti-Semitism and Politicsin the Black Community in the U.S.A.

Nathan Lewin

Adv. Nathan Lewin is a Deputy President of the Association and President ofits American Section

A

No. 4January 1995

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financed the slave trade and controlled the civil rights move-ment, 'I had never really thought about it before', she said, 'itmade sense to me'".

What we see in the United States is an amazing phenomenon.As another observer, wrote recently, "American Blacks are oneof the few groups in which hostility to Jews increases withhigher education and higher income". Farrakhan and his peoplehave been speaking at Black college campuses. They have beenpropagating hate against the Jewish community to the growingbody of Black middle class intellectuals and those who would beleaders of the Black community in the years to come.

This is a condition which calls for great alarm among theJewish community in the United States and the Jewish commu-nity world-wide. There are Black intellectuals, such as ProfessorGates, Professor Glen Loury of Boston University, ProfessorCornell West of Princeton and others who have spoken outagainst it, but they are few and far between. What we have seenin recent years is the development of rabid, zealous hate speechby Blacks against Jews in the United States.

Speech ultimately leads to action. We saw the consequences,for example, when a former member of the Nation of Islammade an attempt on the life of Muhammad in California. Thecrowd that was supportive of Muhammad immediately assumedthat the assailant was a "tool of the Jews".

Another consequence is the government paralysis subsequentto the Crown Height incident - the three days in New York a fewyears ago when the Black community in Crown Heights ranamok and ended up causing the death of an innocent person,with cries of "kill the Jew" before he was killed. The Departmentof Justice was repeatedly urged by Jewish Congressmen andJewish interest groups to investigate and prosecute, but it tookyears before it did anything.

What is the cause of the growth of Blackanti-Semitism?

It is not the Jewish religion. There are people who call them-selves "Ministers" who are involved. For example, LouisFarrakhan of the Nation of Islam, and the Rev. Jesse Jackson,who compared to Farrakhan is not so rabid and extreme, butonly because in comparison to Farrakhan he has suddenlybecome somebody whom the Jewish community has decidedthat maybe it should embrace. Indeed, in Israel as well, when hecomes over, there is an attempt to justify him and his positions.

The basic situation in the United States comes down toeconomic interests and to power:

Economic interests: In the 1950s and the 1960s, at the timewhen Blacks in the United States were seeking to gain equalrights, it was the Jews who disproportionately supported whatthey were doing. The Blacks have now turned against the Jews.The reason may be, as Professor Gates stated, "we can rarelybring ourselves to forgive those who have helped us". Further, inthe wake of the civil rights struggle whose purpose was to gainequality for Blacks, special rules were carved out for the Blackcommunity; the result has been affirmative action programs, inwhich the Black community has received an affirmative right notto be treated equally but to be treated better than others, andmainly at the expense of the Jewish community, in terms ofcollege admission and other economic factors.

Power: The Voting Rights Act in the United States, whichwas designed to give the Blacks equal access to the polls, hasbeen used to create districts which are racially designated so thatminorities can be elected from those districts; the result here hasbeen that Jewish legislators from places such as Florida and NewYork have lost seats that they have occupied to Black andminority communities.

What are the remedies?Some Jewish organizations and Jewish leaders believe that the

only action they can take is to get out of the way; to bend overbackwards to the Black community. Some believe that the thingto do is to enter into greater dialogue with the Black community.This appears to me to be a form of racism. Black anti-Semitismshould be treated like white anti-Semitism. There is no morejustification for this kind of a book coming from the Nation ofIslam and Farrakhan than from the Klu Klax Klan or any whitehate group. Consequently, it is the job of the Jewish communityto oppose those who support this kind of hate speech, to opposethe Black congressmen that said they were going to enter into asacred covenant with Louis Farrakhan, and to support Blackcongressional candidates who have spoken out against it.

It is only under those circumstances by treating Black anti-Semitism as one would treat white anti-Semitism that we candeal with this phenomenon in the United States and deal with iteffectively.

January 1995No. 4

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he tragedy of theJewish people,provoked by NaziGermany, has nothad any equal.

The European countrieswere allies of the Germansor were occupied by theGerman troops, and theideological and racial perse-cution there took on adifferent intensity andsavagery. The problem ofcompensation, therefore, was a problem which had to be facedby the Germans, and, of course, it applied first to those indi-viduals who used to live in Germany.

On 29 June 1956, the Federal Compensation Law for thevictims of persecution was enacted. It provided the possibility ofcompensation for injury to freedom, health, life, as well aseconomic loss and loss of profession. Compensation officeswere set up by the various Lander in Federal Germany; theoffices dealt with the people who lived on the 1st October 1953in the area of the office. The Federal Law provided compensa-tion on personal claims which had, however, to be presented

within a certain period of time. The contentions were judged bycivil courts, and by specialized chambers and there was also thepossibility of appeal. The Law authorized the State to makearrangements with communities and states, and also, undercertain conditions, to provide solutions where the claims wereput in late.

The Law also provided for the possibility of compensation torefugees and people without nationalities, according to the defi-nition in the Geneva Convention. It was a condition that thesepeople could not have the protection of their own countries, andwere stateless, and therefore had to address their claims to thestate which was the heir to the Third Reich.

Further, the people who belonged to the German culture wereconsidered to have equal rights to those who had been perse-cuted in Germany. Special cases, among which one should citeAustria, did not profit from this Law. Austria considered itself acountry which was occupied by the Germans, the Germansconsidered Austria to be an enthusiastic partner.

The practice of these compensation offices and the case law ofthese various courts opened up a new specialization in the fieldof law, called restoration and compensation of the Nazi victims.Of course, not all the cases were foreseen by the Law, thereforeit was up to these compensation offices and the courts to fill thelegal void. For example, in France we were faced with theproblem of the Jews who came from Turkey, whose compensa-tion had been refused. While Turkey had been neutral during theSecond World War it was obvious that there was an agreementbetween the Turkish consulate and the German commendature.The consulate saw which Turks had been deported and thenintervened the next day, thereby providing themselves with analibi and enabling the Germans to deport these stateless Turks.This meant that we had to deal with these cases and considerthem as persecuted people.

The King of the Gypsies wanted to start proceedings because800,000 gypsies had been placed in Auschwitz and other camps.The gypsies had failed to put in a claim for compensation beforethe deadline; most of the gypsies were illiterate and could notpay lawyers' fees. The Germans did not accept their claim. Theyregarded the gypsies as having been interred not on racialgrounds but as asocial people, who, at the time of the war, weremost usefully put in camps. It was only much later that the rightsof the gypsies were recognized by the German courts.

The Atlantic Wall in France was built by the Todt organiza-tion which utilized thousands of Spanish Republican refugees

Restitution ofJewish Private

Property inEastern Europe

Paul Feher

Dr. Paul Feher is an advocate of the Court of Appeal, in France. He is anexperienced lawyer in the field of compensation and recovery of Holocaustsurvivors' property. Dr. Feher is a member of the Board of our French Section.

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who had been living in France since 1939, following the CivilWar in Spain. The refugees were exploited on the pretext that anoccupying power had the right to use unemployed persons fornecessary work. There, again, there was a long struggle becausewe wanted them to be recognized as anti-Nazis who had beenpersecuted. It was seven years before the courts and the appealcourts recognized that these people were really persecuted.

The despoilation of moveables has concerned us over recentyears. Many of the goods were taken to Germany and distributedthere. Personal claims in this regard were based on the legalnotion of "unjust enrichment" and Germany agreed, at least inprinciple, to provide compensation for the goods which had beenpillaged. Nevertheless, it was almost impossible to find the

dependents of those who died during the period of persecution.Here again, a legal presumption applied, namely, a person dyingwithin 8 months of the persecution was presumed to have diedfor reasons of racial persecution. This dependent was then enti-tled to a monthly income for life.

After 35 years of activity and following the implementation ofthe German Law of Compensation, we should have the knowl-edge to deal with the new situations relating to compensation forthe Eastern European countries, Hungary, Poland, etc.

It is important to make a few comments in connection with theactivities of the Jewish Restitution Organizations, and in partic-ular to warn against the danger which we have come across incountries which look favourably upon compensation for commu-

After the fall of the BerlinWall we found ourselves in a

new situation and we will nowhave to study the possibility ofreopening these cases - since

under the compromisesolutions we accepted sums of

money which did notcorrespond to the damage.

fall of the Berlin Wall we found ourselves in a new situation andwe will now have to study the possibility of reopening thesecases - since under the compromise solutions we accepted sumsof money which did not correspond to the damage.

The German Federal Compensation Law recognized the factthat one could be compensated for damage to liberty but hereone has to distinguish between two branches: "limitation offreedom" - this meant that one had to wear the Jewish star, livein hiding, etc.; and "loss of freedom" - which meant deportation,forced labour and military supervision.

This distinction has its own importance. If the conditions ofliving during the persecution had as their consequence that onelost 25 percent of one's working capabilities, this opened the wayto compensation which was given on a monthly basis for thewhole life of a person. This led to a presumption to the advan-tage of those whose freedom had been totally taken away andnot limited. Damage to life meant that one could grant rights to

poor as if this justifies keeping the goods which were the resultof theft. In Hungary, compensation is limited to 50,000 dollarsirrespective of the extent of the damage. Compensation is notprovided in money but in bonds or coupons, thereby auto-matically reducing its value by another 25 percent. Thisemphasizes the importance of proper coordination between theorganizations dealing with personal and communitiescompensation.

In Israel, there are 400,000 people who originally came fromRumania. None of these understand why Rumania refuses to paytheir pension. Many are professional people who worked formany years in Rumania before making Aliya. Their rights andthe return of their money has to be discussed and receive thesupport of official organizations. The public has to be informedof the magnitude of the problem and the difficulties facing therestitution organizations. While the poverty argument must betaken into account, it cannot be accepted as an excuse.

proofs which we were asked to supply,because this would have meant askingsomeone in a concentration camp whoseflat had been emptied to say on whattrain his property had been sent toGermany. As a result, we had to accept acompromise with the Federal Ministry ofFinance in Bonn. The fundamental argu-ment was that East Germany was notpaying its share; while West Germanyonly represented half of pre-warGermany and therefore could not beexpected to pay for everything. After the

nities but refuse to hear about personalcompensation. Rumania, for example,has agreed to the return of 243 ceme-teries and synagogues, but will notconsider personal compensation. Theagreement is therefore only a trap. Thebudget of the Rumanian community isinsufficient to cover the maintenancecosts of 243 cemeteries. The State, for itspart, wants to rid itself of these ceme-teries and pass to the community the dutyof looking after them. Countries such asRumania, start out by saying that they are

January 1995No. 4

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he Uruguay Round Agreement is an historic accord.Signed on April 15 in Marrakesh, it represents thelargest negotiated tariff reduction in history - nearly a50 percent cut between the United States and theEuropean Union, over one-third world-wide. It will

open global markets and enrich the global economy by over 5trillion dollars in the next decade. It will create millions of jobsaround the world, and raise standards of living. It will bring newareas, such as agriculture and services, under GATT rules, andhalt the piracy of intellectual property rights.

But the value of the overall agreement exceeds any specificbenefits. By modernizing and expanding the world trade rules,we have ensured that the multilateral trading system willcontinue to play a central role in world trade liberalization. Withthe great progress that has been made on a bilateral and regionalbasis around the world in recent years, it was particularly impor-tant that the multilateral system keep up and bind the differentregional systems into a coherent whole.

As the U.S. Representative to the European Union, I mightadd that for U.S.-EU trade relations, too, the Uruguay Roundwas vitally important. Ambassador Kantor has frequently saidthat the entire world has changed with the fall of communism:we have moved from mutually assured destruction to mutuallyassured prosperity. Within the realm of trade, the same can besaid of the Uruguay Round itself.

Had the U.S. not agreed on the GATT Round, the partieswould have headed directly toward a serious trade conflict,complete with mutually destructive retaliation and counter retal-iation. The United States and the EU had fundamentaldisagreements on everything from oilseeds to paper tariffs, manyof which threatened to lead to retaliatory measures.

With the Round, we have:* Successfully resolved a myriad of problems;* Put in place a series of negotiations to address those difficult

issues that were not finally resolved in the Round;* Created a dispute settlement procedure for resolving our

future problems.

The result is that the U.S.-EU trade relationship - so large apart of the global trading order and so vital to its continued pros-perity - has been returned to a normal, manageable footing. Theresolution of trade disputes and the expansion of trade achievedthrough the Uruguay Round Agreement will help us forge amore prosperous and stable world.

Important Elements of the Round for theUnited States

The successful conclusion of the Round involves thefollowing major steps:* Slashing industrial product tariffs between the U.S. and the

EU in half and eliminating tariffs altogether on many products.* Worldwide, cutting tariffs by a third. Within the next 6 years,

tariffs will be reduced in some 40 major markets around the

International TradeAgreements:

The Uruguay Round

Stuart E. Eizenstat

Ambassador Stuart E. Eizenstat, member of our Association, is the U.S.Representative to the European Union.

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No. 4January 1995

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world. Among those major markets, U.S. tariffs on a broadrange of industrial products will be among the world'slowest.

* Agreeing to cut trade-distorting farm subsidies and graduallyto open previously closed markets in agriculture.

* Beginning the process of liberalizing trade in services.* Establishing a new World Trade Organization (WTO) to

oversee the comprehensive new set of trade rules.* Establishing an integrated, efficient, and binding dispute

settlement procedure that will help us solve future disputesrapidly and definitively.

Our task then became to ratify and implement the agreementbefore the end of the year, so the WTO could go into effect onJanuary 1, 1995. On the European side, ratification became amajor political issue, involving all of the EU institutions. TheEuropean Commission proposal to implement the Roundprimarily under Article 113 of the Treaty establishing the EEC,would give the EEC competence over virtually all trade issues,including intellectual property rights, services and investment.The Council, by contrast, suggested approval of the agreement ina way that gives no new competence to the EEC at the expenseof the Member States.

Under either the Commission or the Council approach, theEuropean Parliament would have to assent to the UruguayRound result. This is a new responsibility for the Parliament.

Finally, the European Court of Justice (ECJ), too, had a majorrole to play in the Uruguay Round approval game. TheCommission asked the Court to rule on the legal consistency ofthe Uruguay Round with the Treaty, a case that resulted in judi-cial guidance as to which Treaty articles should be used by theCouncil to approve the Round.

Essentially, the ECJ ruled that while industrial goods weresolely within the jurisdiction of the European Commission, tradein services and intellectual property issues were of mixedcompetence and Member States had substantial rights.

The Commission-Council dispute over the legal basis ofUruguay Round ratification led to considerable delay in the EU'sUruguay Round approval process. The Council's deadlock overbananas prevented the Uruguay Round approval documents fromreaching the Parliament in time for the Parliament to act at itsfinal plenary before the June Parliamentary elections. Thus, theParliamentary vote did not occur until December.

In short, internal EU politics pushed EU ratification to theend of 1994. Once the Court, the Council, and the Parliamenthave acted, the Member States plan to ratify the UruguayRound agreements.

In the United States, ratification hinged in part on Congress'sfinding a way to offset the approximately $13 billion in revenuelosses expected to result from U.S. tariff cuts mandated by theagreement. There are also concerns that the Round would legi-timize certain types of subsidies and fears that the creation of theWTO and its improved dispute settlement procedures couldrepresent an erosion of U.S. sovereignty. This latter fear is, inmy view, greatly overblown. Members of the WTO will not losethe sovereign right to take whatever trade actions they want. Theonly changes from the current situation under the GATT will bethat the dispute settlement procedures will be more effective andthe trade rules will be extended into a number of new areas. TheUnited States has supported these negotiating objectives underboth Democratic and Republican administrations because thenew rules will manifestly make for a better world tradingsystem.

After an intense effort led by President Clinton, Congressoverwhelmingly adopted GATT in an unusual post-electionsession.

Ongoing and Future NegotiationsThe Round is a historic achievement, but it is also a work in

progress, setting out an ambitious work plan for further liber-alization of international trade beyond the implementation of theRound results. Areas of ongoing negotiations include financialservices, telecommunications services, maritime services, steeland large civil aircraft.

Looking beyond these particulars, we will need to turn ourattention to a new generation of trade issues likely to affect notonly U.S.-EU but also international relations for years to come.The future success of the global trading system to a large extentwill depend on our ability to ensure that the Round helps build abetter world. Certainly, we must continue to reduce tradebarriers to expand market access. But we also must address poli-cies that have an important relationship to trade, even thoughthey are beyond the traditional trade agenda.

When the Uruguay Round started in 1986, the world was avery different place from what it is today. The Round wasincredibly ambitious in addressing a range of what were thennew and untried trade issues. In the end, that experiment has

January 1995No. 4

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proven tremendously successful. During the seven years of theUruguay Round negotiations, however, other trade issuesemerged or were reinvigorated in a way that could not have beenanticipated in 1986. It is now time to turn to this new generationof issues. President Clinton in his January discussions withEuropean Commission President Delors suggested that "thesuccessor agenda to the Uruguay Round should include issuessuch as the impact of environmental policies, competition poli-cies and labour standards."

The most advanced of the new issues is trade and the environ-ment. This issue was explicitly identified in the Uruguay Roundconclusion as an area for further work under the WTO, and aspecial committee of the WTO will be formed to address thesubject. Another next generation trade issue, competition policy,was covered in the Agreement on Trade Related InvestmentMeasures (as was future work in investment itself). Article 9 ofthat agreement calls for a review of the Agreement within five yearsof its entry into force "to consider whether it should be comple-mented with provisions on investment and competition policy."

As the European Union has learned, the reduction or elimina-tion of government-imposed trade barriers between countriesmakes the elimination of privately imposed barriers extremelyimportant. The international trading system has advanced to thepoint that, there too, competition policy may be becoming asimportant as trade policy in achieving a free international flowof goods and services. More and more, trade disputes involve anelement of competition policy, whether the issue is penetratingthe Japanese glass market or dealing with floods of Russianaluminium onto world markets. With the further trade liber-alization achieved in the Uruguay Round, competition policywill only become more important as a trade issue.

Another vitally important issue involves the intersection oftrade and internationally recognized labour standards. Allnations have a stake in improving labour standards that willsupport higher standards of living everywhere, because a broaddistribution of the gains from trade will fuel global growth andensure public support for expanded trade. Therefore, addressinglabour standards will strengthen the global trading system andfoster sustained prosperity.

In this "virtuous cycle", expanding trade begets more tradeand growth as long as the expansion of trade and productivityresults in rising living standards. Improving labour standards isgood for business because it contributes to higher levels ofproductivity and quality, raises worker morale, and creates a newclass of consumers. Acceptable labour standards are especially

important to support growth in developing countries that haveadopted market-oriented policies. Growth is simply not possibleif workers are neither willing to accept the costs of change, norgiven an incentive to do their best. To complete the cycle,enforcement of international labour standards in turn helps tomaintain support for trade liberalization.

For these reasons, the United States seeks to achieve broadsupport for trade-expanding policies at home and abroad byassuring that benefits from trade are widely shared and thatrising standards of living in all trading countries fuel a balancedexpansion of trade. We are convinced that these objectives canbest be obtained through improved labour standards.

Since the area of trade and international labour standards hasbeen the most controversial - and the least understood - of thenew generation trade issues, I would like to make it plainlyunderstood that U.S. motives are not protectionist. Our aim isnot to erect barriers against exports of developing countries.Rather, we must find a way to promote labour standards throughthe trading system without seeking to counteract legitimatecomparative advantage.

The relationship of international labour standards to trade hasbeen part of the Congressional mandate for the last two roundsof multilateral trade negotiations. The Trade Acts of 1974 and1988 called for the adoption of international fair labour stan-dards and of public petition and confrontation procedures in theGATT. The Trade Act of 1988 stated that our principal nego-tiating objectives regarding workers rights are (a) to promoterespect for worker rights; (b) to secure a review of the rela-tionship of worker rights to GATT articles and relatedinstruments with a view to ensuring that the benefits of thetrading system are available to all workers; and (c) to agree, as aprinciple of the GATT, that the denial of worker rights shouldnot be a means for a country or its industries to gain competitiveadvantage in international trade.

U.S. efforts in the Tokyo Round failed to obtain the necessaryinternational support, and a similar initiative in the UruguayRound generated considerable controversy. At the MarrakeshMinisterial Meeting closing the Uruguay Round, however,Ministers agreed that the inclusion of labour standards in thefuture work program of the World Trade Organization would bediscussed in the Preparatory Committee. This means that thisimportant issue can now be discussed in an internationallyapproved form, thereby recognizing the efforts of successiveU.S. Administrations of both parties to begin a rational discus-sion of this vitally important subject.

No. 4January 1995

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The United States supports the work on all of these "newgeneration" trade issues in the OECD and the WTO. We stronglysupported the successful creation of a committee on trade andthe environment in the WTO. We are working closely with theEU to establish a work program for that group that will be broad,non-exclusive, and flexible, yet sufficiently focused to achieveconcrete results within a reasonable period. We will continue tosupport inclusion of the other trade issues of the 90's - competi-tion, labour standards, and investment - on the list of issues to beconsidered for the work program of the WTO.

I know that some may have concerns about addressing theseissues. I can assure these people that the goal of the UnitedStates is to tear down walls, and not to build them. We willsteadfastly resist any effort to use these initiatives as an excusefor protectionism. Instead, we will work together with ourtrading partners to ensure that the global trading system worksfor the benefit of all people. By ratifying the Urugauy Round, wehave done exactly that.

Association marks 100 years of theDreyfuss Affair

In a meeting convened on the 6 November 1994 in Tel Aviv,by the Council of our Association, the 100th anniversary of theDreyfuss Affair was marked by a lecture given by Adv. GideonHassid, former Deputy State Attorney.

Participants included members of our Association, Heads ofNational Sections and invited guests.

Dr. Jacob Robinson PrizeIn the amount of $2000.- will be awarded to a person for a

paper on the subject : The Jew as Individual and NationalMinority in International Law.

The Jury: Prof. H. Cohen, former Deputy President of theSupreme Court of Israel (Chairman). Prof. S. Rosenne,Ambassador, Israeli Foreign Ministry. Adv. A. Tory, Chairman,Lithuanian Jewish Academicians.

Papers (50 pp. folio at least, 3 copies) to be submitted by 30June 1995 to: The Robinson Prize Committee.

C/O Tory, P.O. Box 37795, Tel-Aviv 61376, Israel.

Prime MinisterÕs New Legal AdvisorThe Association congratulates Col. Ahaz Ben-Ari on his

recent appointment as Legal Advisor to the Prime MinisterÕsOffice.

Col. Ben Ari served until recently as IDF Assistant MilitaryAdvocate General for International Law. He is a member of ourAssociation.

Books Just Received¥ Israel Law and Business Guide, by Alon Kaplan, General Editor, Kluwer Law and Taxation Publishers, 1994.¥ The Law of the State of Israel: An Introduction, by Dr. Ariel Bin-Nun, Rubin Mass Ltd., Jerusalem, 1992.¥ The Boundaries of Liberty and Tolerance: The Struggle Against Kahanism in Israel, by Raphael Cohen Almagor,

University Press of Florida, 1994.¥ A Guide to the Sources of Jewish Law, by Prof. Nahum Rakover Dr. Jur., The Library of Jewish Law.¥ Modern Applications of Jewish Law, by Prof. Nahum Rakover, Dr. Jur., The Library of Jewish Law.

January 1995No. 4

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ince 1990, the Israeli economy has expanded rapidly,and has become one of the fastest growing economiesin the world. The massive new wave of immigrationstarted at the end of 1989, had a major impact on theoverall economy. The average yearly real growth of

Gross Domestic Product (GDP) in the last four years was 5.5percent. The yearly average growth of the business sector in thesame period was 6.5 percent.

In the first two years since 1990, growth was led by massiveconstruction initiated by the government, in order to providehousing for the former Soviet Union immigrants.

The year 1993 was a turning point. Trends which appeared in1992 persisted in 1993; the expansion of industries producingtradeables, especially for exports, and the contraction of theconstruction industry. Business sector product, excludingconstruction, continued to grow rapidly at a pace of 6.7 percent.The influx of immigrants continued at the 1992 level; theirnumber was 80,000.

The high growth rate of the business sector product (excludingconstruction) is presumably the result of several factors whichhave been at work in the last few years:1. First of all the immigration which induced demand for

housing and for consumption goods. Later, immigrantspushed up supply by offering highly skilled workers.

2. The second factor of growth was the restructuring of theeconomy due to reforms which took place, especially theintroduction of new financial tools supplying opportunities toentrepreneurs and offering special aid to small and mediumbusinesses.

3. The third major factor was the reduction of governmentinvolvement in the economy, characterized by diminishinggovernment expenditure as a percentage of GDP.

4. Finally, the price stabilization which took place after a longperiod of high inflation. All these factors contributed towardssupply expansion.

Some of the manyfactors which have trans-formed Israel's economyfrom a hyper-inflationary,low-growth state to that ofa leading economic engine,include:* Highly educated, low

cost workforce* Strength in exports* Immigration led popu-

lation boom* Declining inflation and

interest rates* Privatization* Expanding domestic capital markets* Free Trade Agreements with Europe and the U.S.* Active foreign investment* Potential peace dividends

Economic Growth FactorsHighly Educated Workforce - Israel has one of the highest

per capita concentrations of engineers and scientists in theworld. This wealth of human capital has enabled Israel tosuccessfully penetrate many high technology niches.Additionally, Israeli companies have been very successful incommercializing military technology and thus absorbing a wholegeneration of military engineers. The addition of Russian immi-

Legal and Economic Aspects ofInvestments in Israel

Joseph H. Gross

Professor Joseph H. Gross is a prominent Israeli lawyer, member of ourAssociation, Professor of Commercial Law at Tel Aviv University, formerDirector in the Israeli Stock Exchange, Chairman of the Government AdvisoryCommittee on Government Corporations, and a member of our Association.

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No. 4January 1995

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grants, a good percentage of whom are engineers and scientists,has enriched this already fertile group.

Export-Oriented Industry - Israel's economy is exportdriven, with exports of goods and services accounting for over30 percent of GDP. The largest contributor to this exportstrength is the high technology sector. Israeli companies havecarved out niches in certain areas such as telecommunications,software and local area networks, in which they have gainedmeaningful market share position in Europe and the U.S. Otherareas of export strength include chemicals, apparel and agri-culture. Israel's Free Trade Agreements with both Europe andthe U.S. have positioned the country for continued penetration ofthese markets. Exports rose over 10 percent in dollar terms bothin 1992 and in 1993, as compared to the prior year's results.

Population Boom - Over the past three and half years, over

an 8 percent inflation rate for 1994. This lower level of inflationis obviously having a positive affect on interest rates, especiallyin the non-linked arena. The lower level of interest rates bodeswell for continued high levels of capital spending.

Reduction of Government Involvement in the BusinessSector - A number of factors have been moving Israel towards amore free-market economy. The loosening of import restrictions,the reduction of monopolies and cartels, a significant weakeningof the main trade union, a more liberal attitude toward foreignexchange, and the privitazation of state-owned companies, arebeginning to eliminate the bureaucracy, waste, and inefficienciessymptomatic of a formally socialist-oriented economy.

Privatization - Israel's government seems to be taking a moreserious stance on privatization. 1993 has witnessed the first stepsin the privatization of the country's two largest banks, Bank

domestic economy, such as spending on non-durables andservices, continues.

The second major impact of the massive wave of immigrationhas been on Israel's workforce. The average age of these immi-grants is 34. These new citizens have added tremendously to thecountry's workforce, which totals about 1.7 million people.These immigrants are highly educated with a significantminority being engineers, scientists and doctors. This hasboosted Israel's already substantial pool of human capital.

Inflation and Interest Rates - After suffering hyper-inflationin the mid 1980's, the Israeli government was successful inlowering the country's annual inflation rate to the 20 percentlevel during 1986-1991. In 1992, for the first time in 20 years,Israel achieved single-digit inflation, with an annual rate of 9.4percent and 11.2 percent in 1993. The government is forecasting

Israel has over 100 government companies that are slated forsale or public issues. The proceeds from these actions shouldhelp the government continue its aggressive spending on infra-structure while keeping its budget deficit under control.

Expanding Capital Markets - The securities of more than500 companies are now traded on the Tel-Aviv Stock Exchange.

Capital Market ReformsCapital market reforms are focused on the following:

* The mandatory requirement for government securitiesimposed on institutional investors dropped from 92 percentto 50 percent and is now limited only to pension funds.

* The government no longer intervenes in the issue of newstocks and bonds.

Hapoalim and Bank Leumi. The govern-ment sold approximately 20 percent ofeach bank in public offerings on the TelAviv Stock Exchange. Additionally, thegovernment sold its 51 percent interest inMivney Tassiyah, a major industrial realestate developer. The sale of a control-ling interest in the country's fourthlargest bank is the next item on tap. In1994, Israel Chemicals, Bezeq, thecountry's telecommunication corporationand El-Al, should float their shares onthe New York Stock Exchange. In total,

500,000 people have immigrated toIsrael, representing nearly a 14 percentincrease in Israel's Jewish population(Israel's natural population growth rate isapproximately 1.5 percent annually).This inflow has had two major impactson Israel's economy. The most obviouseffect of this increase in population hasbeen on domestic consumption. Initially,the biggest growth was seen in theconstruction sector as the country gearedup to shelter these newcomers. The posi-tive impact on other aspects of the

Israel's Free TradeAgreements with both Europeand the U.S. have positioned

the country for continuedpenetration of these markets.Exports rose over 10 percentin dollar terms both in 1992and in 1993, as compared to

the prior year's results.

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* Liquidity requirements on bank deposits were drasticallyreduced from up to 100 percent on some saving accounts, to4-8 percent, on a par with levels of other industrial countries.

* "Preferred sectors" which benefited from "direct loans" havebeen abolished.

* The forced segmentation of the market between long termversus short term loans and between indexed and non-indexed loans has practically been abolished.

Free Trade Agreements with Europe and the U.S. - During1992 Israel signed a trade agreement with EFTA. This agree-ment, combined with previous agreements with the EEC and theU.S., position Israeli manufacturers to further penetrate thesemarkets. For example, a number of major apparel retailers (The

and science, where labour costs are generally about 30 percentbelow America. Additionally, the combination of governmentincentives, which can cover up to 50 percent of R & D costs,with the new low-cost labour pool of Russian engineers, havegiven Israeli companies the necessary leverage to compete withlarger international companies. Manufacturing companies havealso benefited on the labour cost side. On an inflation-adjustedbasis, the average wage in Israel is lower today than in 1989.

Active Foreign Investment - American high-technologycompanies have continued to invest in R & D and manufacturingplants in Israel. Recently, Intel Corporation proposed a $1 billionexpansion plan for its already substantial development andmanufacturing facilities in Israel. (The Israeli government subsi-dizes 38 percent of capital expenditures). Additionally, many

Limited, Gap Stores) have increased theirsourcing from Israel at the expense ofAsian countries, whose goods manytimes are restricted due to quotas andtariffs. Israeli high-technology compa-nies have begun entering other marketsegments, such as digital television andsemiconductors, where Israel's free-tradearrangements may give them substantialadvantages over other manufacturers.

Unique Free Trade Status - Webelieve that Israel is the only country in

American companies have utilized theBIRD foundation (a joint U.S. - Israelgovernment-funded organization) to helpfund joint development work betweenIsraeli and American companies.

An increasing amount of capital isentering the country both through publicofferings of Israeli companies on WallStreet and from venture capital firmstargeting Israeli companies. Over the pasttwo years, 18 Israeli or Israel-relatedcompanies raised over $850 million of

Currently, over $200 millionin venture capital funds havebeen raised for investment in

Israel. Although small inabsolute terms, this amount isvery large relative to venturecapital historically dedicated

to Israel.

equity on U.S. exchanges. Venture capital firms have alsostepped up their investment in Israel. Currently, over $200million in venture capital funds have been raised for investmentin Israel. Although small in absolute terms, this amount is verylarge relative to venture capital historically dedicated to Israel.

Peace Process - Israel and Palestinians are currently workingon a preliminary agreement paving the way for limitedautonomy. This in turn may push the Syrians, Jordanians andLebanese closer to peace agreements with Israel. Although thiswill be just a first step in what most probably will be a longprocess, the implications for Israel's economy obviously are verypositive. Given Israel's relatively advanced manufacturing infra-structure and its wealth of talent in key areas such astelecommunications, Israeli companies could conceivably reap awindfall from the new markets open to them. Additionally, theelimination of the Arab boycott would open up non-Arabmarkets that were previously closed to Israel.

the world to have signed free trade agreements with both theU.S. and the EEC. The free trade agreements signed betweenIsrael and the EEC in July 1976 gives Israel's industrial exportsto the EEC the same benefits from full tariff exemption receivedby EEC member nations trading among themselves. The freetrade agreement between Israel and the U.S., which becameeffective in August 1985, is similar to the EEC agreement.

Preferred Status Exports - These agreements provide aunique opportunity for multinational corporations doing businessin the US and Europe. Specifically, Israeli exports to the U.S.benefit from preferred status over direct European exports to theU.S., and similarly, Israeli exports to Europe enjoy preferredstatus over direct U.S. exports to Europe.

Lower Wage Structure - Although not at the level ofSoutheast Asia, Israeli businesses enjoy a competitive advantagein their wage structures versus their European and Americancounterparts. This is especially true in the areas of engineering

No. 4January 1995

30

he main theme of this article is that one cannot plan aninvestment in a foreign country, especially not in acomplicated tax structure, without a joint venture andjoint thinking between jurists and experts in the twocountries - bringing together a scheme or an arrange-

ment for an investment in the foreign country. Experience inrecent years has shown that if one wants to perform diligentwork for one's client or, if one represents the state, the state, onemust consult and be in daily contact with the foreign expert andnot rely on one's own expertise in the country in which one isplanning the investment.

This thesis may be proved by two examples:The best mode of investment in Israel for an American

investor is through the use of what is known as an "SCorporation". This is a corporation which under U.S. law for taxpurposes would be regarded as a partnership, so that the invest-ment in Israel would be directly attributed to the shareholders,without bearing any tax consequences under the internal law ofthe United States, whereas under Israeli law the S Corporationwould be regarded as a corporation for all purposes and wouldbe entitled to the lower tax rates under the Encouragement ofCapital Investments Law, 5719-1959.

A regular investment in the U.S. would give a net return of39.26 percent, whereas an investment in a corporation in Israel

and in an Israeli subsidiary, would give a net yield of 54.36percent. This comprises a major difference of one third in the netreturn.

In the case of an S Corporation - which is considered as a part-nership for U.S. tax purposes, and as a corporation under Israelilaw - whether it is an "Approved Enterprise" or a regular corpo-ration, not having any tax benefits under Israeli law - the netreturn is even higher - 60.4 percent under the tax regimes of bothcountries.

This is the perfect example of where being conversant withthe unique tax law of the United States, where special S corpora-tions are being granted the status of a "Look Through", enablesone to achieve a much better result in planning an investment ina foreign country, in this case - Israel.

But one may go even further to prove the thesis. Afterconsulting with a U.S. expert one can achieve the same results incases where the S Corporation is unavailable because of internalU.S. tax law. Under U.S. law, the S Corporation is unavailable ifone of the shareholders is a non U.S. citizen or a non U.S. corpo-ration. How does one overcome this problem if one wishes toplan an investment in Israel, where at least 10 percent of theinvestors will be non-U.S. shareholders, such as Israelis? Again,using the availability of consultations with the foreign expert,one can, under U.S. law, give the status of a partnership to acorporation. Under Israeli law, this corporation will be consid-ered an Israeli corporation for all purposes.

Thus, if one creates under Israeli law a corporation whichlacks at least two of the following characteristics:

Tax Planningfor Foreign

Investors in Israel

Yaakov Neeman

Professor Yaakov Neeman is a prominent Israeli lawyer and member of ourAssociation; he lectures on taxation and foreign investment in Israeliuniversities, is the former Director-General of the Ministry of Finance.

T

January 1995No. 4

31

* unlimited liability, or* centralized management, or* continuity of life, or* free transferability of shares,then, under U.S. law, such an entity is considered for taxpurposes as a partnership, whereas under Israeli law the sameentity will still be considered a corporation.

If one takes a limited liability company in Israel, a possibilityunder the Companies Ordinance, or restricts the transferability ofshares and requires the full consent of all shareholders for thetransfer of shares, the resulting entity will be what may be calleda "hybrid" entity. In Israel it will be considered as a corporation,able to receive all the benefits under the Encouragement ofCapital Investments Law as a corporation, and would beregarded for U.S. tax purposes as a partnership, so that any tax

Israel is moving further ahead than any other country in the freeworld.

Moreover, the Law provides that in the Free Trade Zone:* No export or import permits will be required;* No foreign currency restrictions will apply on foreign

investments;* Foreign investors will be able to employ foreign employees

to the extent of 3 percent of their workforce;* It will be possible to negotiate private as opposed to collec-

tive agreements with employees;* In the Free Trade Zone there will be full exemption for 20

years (plus a further 20 years if extended) from all directtaxes, i.e. income tax, corporation tax, and land appreciationtax;

* Zero tax rate on Value Added Tax;

today, Israel with the series of incentives under theEncouragement of Capital Investments Law and under the newFree Processing Zone Law, is considered by many specialists tobe a tax haven country. Let us hope that in the near future theresults of this modern tax legislation will become visible, so thatIsrael will also become a center for the high-tech investment itneeds so much.

* No import and export taxeswhatsoever.

* Distribution of profits will be subjectto only 15 percent overall tax in theState of Israel.

In other words, the Free Trade Zonelaw is more attractive to foreign investorsthan any other law in Israel. In conse-quence of this total exemption from taxesand administrative barriers the govern-ment will not grant any loans, grants, orany infrastructure in the Free TradeZone. All those expenses will be borneby the investors.

Free Trade Zone laws world-widehave brought a lot of work and employ-ment. It will be interesting to see whetherthis experience will also flourish inIsrael.

Finally, it should be pointed out that

paid in Israel would be immediately cred-itable in the United States.

Without the willingness of attornies toconsult and work together in both coun-tries, the attorney will be failing toperform diligent, and what may beconsidered the required work to representhis client.

Free Trade ZonesIn June 1994, a revolutionary law

passed in the Israeli Knesset: the IsraeliFree Export Processing Law.

The law is unique for two reasons:A. It eliminates all bureaucracy.B. More importantly, the law provides

for a timetable for any request underthe law, where, if the application isnot approved within that timetable,the application is automatically

approved, unless there is an appeal to a higher administrativelevel.

Thus, Section 28 of the Law states that if within 15 days onedoes not receive an answer to an application to the Council ofthe Free Trade Zone, the application is automatically approved.This is an innovation long sought after in Israeli law; in this area

It should be pointed out thattoday, Israel with the series of

incentives under theEncouragement of Capital

Investments Law and underthe new Free Processing ZoneLaw, is considered by manyspecialists to be a tax havencountry. Let us hope that inthe near future the results of

this modern tax legislation willbecome visible, so that Israelwill also become a center forthe high-tech investment it

needs so much.

No. 4January 1995

32

Judge Myrella Cohen, Q.C. member of the EnglishBranch of our Association, is a Senior CircuitJudge, a Deputy Judge of the Family Division ofthe English High Court, and one of the founders ofthe National Conciliation Service.She was awarded the Honorary Degree of Doctorof Laws and elected a Fellow of the Royal Societyof Arts for her contribution to the legalprofessional and communal welfare work.She was a member of the Get and Agunahworking party that reported to the Chief Rabbi forhis review of Women in the Community.

ivorce is an emotive subject. Itcan be a traumatic experiencenot only for the parties them-selves, but also for theirchildren. A child may have

difficulty in adjusting into a one parentfamily; and may experience feelings akinto a bereavement when a much lovedparent leaves the matrimonial home. Orhe may have difficulty integrating into astep family or feel confused if he is usedas a pawn by warring parents in selfishpursuit of their own concerns. It is ineveryone's interest that a dead marriage

by two witnesses, is physically handedover by the husband or his proxy to thewife (or on some occasions her proxy)usually at the premises of a Beth Din, aReligious Court.

In theory this adequate frameworkexists to end Jewish marriages. In prac-tice, the system is falling down partlybecause some parties believe that theyshould postpone giving a Get until allquestions of parental responsibility andcontact to children have been resolved.This is no longer a relevant considera-tion. Since the passing of the Children'sAct in 1989 the rights of not only parentsbut also grandparents are clearly defined.A Civil Court to which either party is atliberty to apply at any time, will resolvea dispute over children irrespective ofany other consideration. The Get there-fore need not be postponed, nor indeedshould it be. It is immoral to bargain thelives and well-being of children in returnfor the giving or receiving of a Get. Onedoes not hinge upon the other.

The tragic plight of countless womenwho are trapped in a "limping marriage"

The Tragedy of DivorceThe Ways Forward -

The English Way

Myrella Cohen

D be buried quickly and painlessly. TheEnglish civil law recognizes this, and therecent changes in divorce law and proce-dure have made this possible, resulting inan alarming increase in the incidence ofcivil divorce among Jewish couples.What many Jewish couples still fail toappreciate is that a civil divorce in itselfis not sufficient to terminate a marriageaccording to Orthodox Jewish law. Therehas to be a Jewish divorce (Get) as well.In Israel of course there is no civildivorce; so this problem does not arise.

The sanctity of marriage is central tothe Jewish philosophy of life, butJudaism has always recognized thereality that some marriages do breakdown and provides for their dissolution ifboth parties willingly consent to this. Inthis respect Jewish law was well ahead ofEnglish law which has only recentlyaccepted the concept of no-fault divorce.The Jewish divorce takes effect when theGet document freely given by thehusband and freely accepted by the wifeand specially written in Hebrew andAramaic by a qualified scribe, and signed

January 1995No. 4

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i.e. where there has been a civil divorcebut no Get so that the woman is not freeto remarry according to Orthodox Jewishlaw, is well-known throughout theJewish world. The number of humantragedies like this is escalating with theincrease in civil divorce; and unless theroot cause i.e. the absence of a Get, istreated as a matter of urgency it couldaffect the stability of the Jewish commu-nity because of the inevitable dilution ofthe community in the Diaspora. Thoseconcerned with this escalating problemin England see a number of possibleways forward within the English Civillaw, namely by:-

A. LegislationAmending the civil law so that a

decree of divorce would not be madeabsolute as long as there remained areligious bar to remarriage: this has beenenacted in some states in Canada, theUnited States and Australia, and is beingconsidered in South Africa.

A delegation representing the ChiefRabbi and the Board of Deputies ofBritish Jews recently met with the LordChancellor and put the proposal to himthat where Get proceedings are requiredto enable the parties to remarry in Jewishlaw, the Civil Court should be empow-ered to delay or withhold the divorceuntil the Get proceedings have beencompleted.

The delegation further brought to theattention of the Lord Chancellor theanomaly that whereas in English law aJewish marriage ceremony is recognizedby the Court, a Get is regarded as anextra legal action and is not recognizedas dissolving a marriage according toEnglish law (Maples v. Maples (1987) 2All ER 188). However, it does not appear

These agreements will certainly placemoral pressure on the parties, but if oneor other reneges on the agreement andattempts are made to enforce the CourtOrder some Halachic authorities contendthat this would invalidate the Get. Itwould be a Get Meusah or coerced Getbecause it was not given or acceptedfreely.

C. Pre-Nuptial AgreementsBy requiring a couple to enter into an

agreement prior to or at the time of themarriage that in the event of the marriagebreakdown they will refer their problemsto and/or be bound by the decisions ofthe Beth Din or Religious Court.

The Chief Rabbi Dr. Jonathan Sacksannounced last year that he intendedintroducing such an agreement as aprerequisite of the marriage ceremony inrespect of all marriages solemnizedunder his jurisdiction. This proposal hasnot to date been implemented but in theprovisional draft agreement approved bythe London Beth Din and drafted byDayan Ehrentreu, together with thewriter of this article and Judge DawnFreedman, the Bride and Bridegroomwould agree that in the event of themarriage failing they would both attendthe Court of the Chief Rabbi (the LondonBeth Din) or such other Beth Din as thatBeth Din shall direct when required to doso; and would co-operate with theinstructions of that Beth Din in seekingto resolve all problems concerning thedissolution of their Jewish marriage; andthe Bridegroom would further agree thatin the event of civil proceedings beinginstituted in respect of the marriage hewould continue to fulfill all his Halachicobligations to his wife as set out in themarriage contract (Ketubah).

likely that there will be any change in thecivil law in the foreseeable future.

B. Get Clauses and UndertakingsWhere the parties have been separated

for a period of two years a divorce can beapplied for and will be granted if bothparties consent (Matrimonial Causes Act1973 S. 1(2)(d)). Such consent may beconditional upon the granting andaccepting of a Get, and if this conditionis not fulfilled no order for Divorce will

By requiring a couple to enterinto an agreement prior to or

at the time of the marriagethat in the event of the

marriage breakdown they willrefer their problems to and/orbe bound by the decisions of

the Beth Din or ReligiousCourt.

be made. This follows the principleconfirmed in the case of Beales v. Beales(1972) 2 All ER 661, that theRespondent's consent to a divorce maybe conditional (in this case on not payingcosts). However, only a relatively smallnumber of cases fall into this category.Jewish couples are also encouraged toincorporate a "Get Clause" into an agree-ment for financial relief and/or children'sarrangements, which then become part ofa legally binding Court Order. In acontested case where parties give anundertaking regarding a Get, the under-taking has the same effect as a CourtOrder (Livesay v. Jenkins (1985) 1 AllER 106).

No. 4January 1995

34

It has always been possible for partiesto enter into a legally binding contractupon their own terms.

This proposed pre-nuptial agreementdiffers from any other type of contract intwo ways:1. It will apply to every marriage irre-

spective of the status or age of theparties.

2. It will be mandatory.

Will it be enforceable in English law?It is impossible to give a firm answer

one way or the other until the agreementis tested in the courts, especially thehigher and appellate courts, possiblyeven as far as the House of Lords, whichwill take a considerable period of time.

Among the judiciary there is a differ-ence of opinion. Some Judges take theview that it is not enforceable. They sayit would be held contrary to public policyto plan for a divorce prior to a marriageand in addition to order a person tosubmit to the authority of an eccle-siastical body is equivalent to compellinghim to practise principles of a religionwhen freedom of religion is enshrined inthe British constitution. However, otherJudges including some Senior DivorceJudges take the view that the intentionsof the parties demonstrated by theiragreement or undertaking would alwaysbe honoured by the Courts. The LawSociety which is the Professional Bodyof Solicitors in a recent report hasproposed to the Lord Chancellor theenforceability of pre-nuptial agreementsciting the Ketubah as an example of amarriage contract. They submitted theview that a pre-nuptial agreement, ifpresented to a Court today, would beapproved by the Court. Further, in thecase of Shahnaz v. Riswan (1964) 2 ALL

tenance") - one of these is the conduct ofthe parties - namely, if it would be ineq-uitable to disregard such conduct it has tobe taken into account. It has been heldthat conduct does not have to be relatedto the breakdown of the marriage, butmay be conduct which occurs at any timeeven after Decree Absolute and the prin-ciple of the "clean break" has now beenintroduced into the criteria for deter-mining the level of ancillary relief bothin the statutes and by cases in the Houseof Lords.

The theory is that the parties should beencouraged to put the past behind them.Parties to a dead marriage should befreed from all legal bonds and be free tostart a new life which implies remarriage.This will be reflected in the level of anymaintenance awarded by the Court. Youcannot achieve a "clean break" if one ofthe parties is prevented from remarryingbecause there is no Get. Again, thistheory will have to be tested in theCourts, but if the Courts now act uponthe principle that there must be a higherlevel of maintenance where there is nopossibility of remarriage, this is preciselywhat this pre-nuptial agreement isconfirming and could be taken intoaccount accordingly by a Court. This isnot coercion or a penalty. It is acceptingthe reality of a situation and providingfor it.

These suggested initiatives are proofthat consideration is being given tosolving the problem of the Agunah. Weare living in historic times which maywell result in many tragedies beingaverted in the future. We may not be ableto solve the plight of the present genera-tion of Agunot, but we owe it to futuregenerations of young women to ensurethat they do not suffer a similar fate.

ER 993, a dower under Mohammedanlaw was held to be enforceable, the Judgein that case saying that the Court shouldenforce what was promised to the wiferather than that she should be bereft of aremedy in an English Court.

This decision is not binding but maybe persuasive. Even if these undertakingswere held to be legally binding furtherconsideration would need to be given asto how they would be enforced. By anorder for specific performance? With asanction of fines or imprisonment forbreach? A Get has to be given andaccepted freely. Undue pressure or coer-cion might invalidate the subsequent Getso that it becomes a Get Meusah, orimperfect Get.

Parties to a dead marriageshould be freed from all legalbonds and be free to start a

new life which impliesremarriage.

The pre-nuptial agreement may be onstronger ground if its financial aspectsare considered. If a Ketubah is notstrictly construed as a contract, but as apromissory note where a man is obligedin Jewish law to maintain his wife, andhe binds himself that in the event of hisdeath or divorce, she will not be leftwithout support, then the pre-nuptialagreement is only confirming this.English law applied these same prin-ciples, but since the passing of theMatrimonial Causes Act 1973 and theMatrimonial Family Proceedings Act1984 there has been a shift in thinking.

The 1973 Act set out a number ofconsiderations to be taken into accounton an application for ancillary relief(colloquially referred to as "main-

January 1995No. 4

35

JEWISH LAW

IntroductionIn many cases courts have had to

decide on the basis of medical evidence.For instance, paternity suits may bedecided by tissue analysis; sperm testingcan prove infertility and be used as causein divorce proceedings since the inabilityto procreate is a basis for Jewish divorce;psychiatric evaluations can have signif-icance in divorce and other issues aswell.

This article does not deal with the reli-ability of these tests on either a medicalor a Halachic basis. Much literature hasalready addressed this topic. Several rele-vant articles are D. Frimer, "EstablishingPaternity by Blood Test in Israeli andJewish Law", Shnaton Hamishpat Haivri,1978 and the series which appeared inAsia, Vol. 2, (1986) pp. 145-200. Ourpremise is that these tests are reliable andtheir results can be used as acceptableevidence.

We would like to pose the followingquestion: What if one of the litigantsrefuses to be tested? Does the court havethe authority to obligate him to be tested?

The Court's Authority to ImposeMedical Examinations and

the Right of Privacy

includes discovery of documents. Thecourt has the right to force these obliga-tions as Maimonides states:

"When one states to another, the docu-ment in your possession is mine, andthe other answers: I will not relinquishthe document... He is forced to relin-quish it" (Maimonides, Hilchot ToenVenitan, 5,7).

Once the obligation to disclose docu-ments was established, the duty topresent evidence based on medical exam-inations was but a small step. JusticeMenachem Elon explained in CivilAppeal 548/78 Sharon v. Levi, P.D. 35(1)780:

"According to Jewish Law, the court'sauthority to require this examination is

Can such refusal be used against him?These questions present the conflictbetween two basic rights: the right ofprivacy versus the right to expose thetruth. This article will examine theapproach of Jewish Law to this conflict.

The Court's Authority toImpose Medical Examinations

A person is obliged by Torah Law togive all relevant testimony even whennot called upon. This is a positiveBiblical obligation: "He being a witness,whether he hath seen or known if he doesnot utter it, then he shall bear his iniq-uity" (Lev. 5,1) and thus the ShulchanAruch (in Hoshen Mishpat 28,1) states:

"Anyone who knows any relevantinformation, which is worthy of testi-mony, and his friend could benefit byit, when called upon must testify incourt".

Moreover, the obligation of testimonyexists even when not called upon. Thisobligation is based on the Biblicalprecept "Neither shall you stand idly bythe blood of your neighbour" (Lev.19,16) which is the Good Samaritan prin-ciple. The duty to testify is part of theJewish Law's obligation of charity and isnot confined to oral testimony but

Professor Sinai Deutch is the Dean of the Schoolof Legal Studies in Bar-Ilan University, Israel.

Sinai Deutch

No. 4January 1995

36

based on the inherent authority of thecourt to require and order whatever itsees fit for a fair and just investigationof the problem at issue."

According to the aforementioned sourcesthe court's authority to require the disclo-sure of evidence in Jewish Law is basedon the witnesses' obligation to testify andon the litigant's obligation of discoveryof evidence and not only on the inherentauthority of the court. These obligationscharacterize Jewish Law which is notexclusively based on one's rights but alsoon one's obligations to society and thecourt system.

As time went on, Jewish courtsassumed the authority to demand phys-ical examinations of litigants evenagainst their will. But this directive wasnot easily issued and the interested partyhad to convince the court that there wasreasonable cause for such examinationand these procedures were essential forproving his case (P.D.R. 331,338). Thecourt's hesitation was based on itsattempt to protect the right of privacy.

In Jewish Law the disclosure of truthand the individual's obligation to testifytake precedence over the right to privacy.The court does not accept the claim thatthe breach of privacy takes precedenceover the requirement of medical exam-inations for court proceedings. Thisshould not be interpreted as a disregardof the right of privacy by Jewish Law.On the contrary, Jewish Law forbids anyinfringement of an individual's right ofprivacy. However, the court allows intru-sions into an individual's privacy whennecessary for the disclosure of truth foranother's benefit. D.I. Frimer "MedicalExaminations by Order and the Right ofPrivacy", 17 Israel. L. Rev. (1982) 100-102 (see also P.D.R. 14, 298-332).

In the following cases the court's

truth was achieved by submitting themedical records exclusively to the courtfor it's consideration and not to theopposing litigant or his counsel. Theconduct of the litigants during the trialdefinitely also has a serious bearing uponthe court's decision whether to imposemedical examinations.

In another divorce case in the Tel-AvivRabbinical District Court where thehusband also requested his wife toundergo psychiatric evaluation, theRabbinical Court decided not to obligatethe woman unless the husband was readyfor reconciliation if his wife provedhealthy. The argument was that there wasno justification for infringing her privacyif in any case the husband was not readyto maintain the marriage. The husbandrefused to sign such a statement andappealed to a higher court.

The Rabbinical Supreme Courtdismissed the appeal stating that thedefendant had no obligation to disclosediscriminating evidence unless there wasa convincing argument that the documentmight help to decide the case in hisfavour. The Rabbinical Supreme Courtdecided (Appeal 1969/91 unpublished):

"In this case by virtue of the facts andevidence, the appellant did not evenshow prima facie evidence that therespondent requires professional eval-uation. The Rosh (Rabbi Asher BenYechiel) stated that 'it is not reasonableto require someone to disclose docu-ments without a reasonable cause...' letalone, that without a reasonable causeone cannot require someone to submithimself to unnecessary shame andanguish by undergoing such an evalua-tion, only to fulfill the appellant'swhim, who had been unfaithful to hisfirst wife and lives with his mistress."

authority to obligate medical examina-tions was analyzed:

In a divorce case in Haifa's RabbinicalDistrict Court the husband asked thecourt to obligate his wife to get a psychi-atric evaluation from her attendingpsychiatrist and to present all medicalrecords to the court. The husbandclaimed that his wife was mentally ill.The woman denied the allegation abouther mental health and refused both tohand over her medical records or gettreatment. The court dismissed thehusband's charges contending thatwithout evidence to the contrary, his wifeis considered healthy and the onus ofproof is his responsibility. The husbandappealed. The Rabbinical Supreme Courtreversed the lower court's decision.Rabbi Shlomo Goren states in themajority opinion:

"By Halacha the court may force thewoman to submit her medical recordsand also to demand a professional eval-uation if the husband has a valid claimthat she is not stable" (P.D.R. 331,337).

The decision is based on the afore-mentioned quotation from Maimonides.The court noted that in the present casethe husband's claim seemed plausible. Itwas proven that the woman had had threenervous breakdowns which definitelycast a shadow on her present mentalstability. The court ordered the practi-tioner to render all the medical recordsand accordingly the court would decidewhether to request the woman to beexamined by a psychiatrist. In order toensure maximum privacy the evidencewas to be submitted only to the court andfor its exclusive consideration.

The balance between the right toprivacy and the court's duty to reach the

January 1995No. 4

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obligation to achieve a fair and justverdict, (see Maimonides, HilchotSanhedrin 24,1).

A litigant's refusal to reply to ques-tions or disclose documents can be usedas the basis for a decision against him bythe Halacha as was decided by the Rosh(Responsa Rosh 33b):

A woman filed an alimony action. Herhusband claimed that because of agenetic flaw she was not suitable formarriage. The woman denied the claim.The Rosh decided that under thesecircumstances the wife should be exam-ined by decent and honourable womenand if she refuses her husband should notbe required to pay alimony.

Based on these sources and others, theRabbinical Supreme Court decided that ifa person refuses medical examinationsfor a long period - years, it can be heldagainst him.

ConclusionsA. The court has the right to require

medical examinations of litigantseven against their will.

B. A litigant who requests the imposi-tion of such a test on the other partymust show convincing arguments toprove that there is a reasonable causeto his request and that such evidencecould decide the case. Limitations onthe imposition of medical testing aremeant to protect an individual's rightof privacy.

C. When a litigant refuses court orderedmedical testing, particularly in civilcases, it can be held against him.

Thanks are due to Rabbi Meir Batist, seniorresearcher in the "Shema" project and to Mr. RoniKleiman and Ms. Brenda Idstein for their valuableassistance in preparing this article.

Five years later this same case wasbrought to the court for reconsideration(Appeal 1973/150 unpublished), but thistime the court reversed its previous deci-sion. The decision reflects the wife'sadamant refusal to appear before thecourt. The Rabbinical Supreme Courtdecided that her refusal gave substance tothe argument that her husband's claimhad a basis. Finally, because the formerproceeding was held ex-parte the casewas sent back to the Rabbinical DistrictCourt for reconsideration in the presenceof both parties.

In a third case in the JerusalemRabbinical District Court a husband triedto force his wife into a divorce claimingthat for the last 10 years she had not beenable to bear him children. The wife fileda counter-suit for reconciliation andpresented medical evidence that herhusband suffered from infertility. Thecourt suggested that the husband undergosperm testing to prove that the sexualdysfunction was not his. The husbandrefused. Rabbi Eliezer Valdenbergdecided that sperm testing isHalachically permissible under thesecircumstances. He concluded:

"It seems that under the presentcircumstances, when ordered by court,the husband has no right to refuse suchan examination, especially when hisrefusal adversely affects his wife."

The court therefore decided to obligatethe husband to undergo testing to checkhis fertility (see Responsa Ziz Eliezer,part 7, section 48, p. 190).

Implications of RefusalA court's decision that a litigant has to

undergo medical examination is not adecree to force him physically to undergo

such treatment. Forced medical evalua-tion is an infringement of human dignitywhich is a great value under Jewish Law.The few cases where medical treatmentcan actually be forced on a patient arecases of immediate danger to life or limb.Medical evaluations as part of a court'sproceedings are not part of thisexception.

What are therefore the implications ofa litigant's refusal to submit medicaldocuments or to undergo medical evalua-tion? Can the court conclude that alitigant's refusal to undergo medicalexamination can be held against him?There is a Halachic difference between acase where the plaintiff has one witnessand a case where he has none. In theformer case, whereas a single witness isinsufficient to decide a case in monetarydisputes, it is sufficient to force the otherparty to preclude the plaintiff's proof.The source for this argument is inKidushin 66b. A witness testifies that thepriest is handicapped (which hasHalachic ramifications to his service inthe temple). The priest denies the claim.In such a case the onus of proof is on thepriest. This case shows that wheneverfacts can be proven, even one witnessobligates the defendant to defend hisposition. But when neither party cansupport his claims, the requirement toundergo medical testing is weakened.Thus, the refusal of the defendant tosubmit to a physical examination orprovide his medical records cannot beheld against him.

Rabbinical courts in the past and atpresent tend to allow medical examina-tions upon request of a litigant whenthere is testimony to support it. However,there are cases where the court orderssuch a testing by power of the judge's

No. 4January 1995

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Labour Appeal 23/3-223, Palestine Post Ltd. v. JoannaYehiel(Unpublished, 17th October 1994)Before Judge Goldberg (President); Judge Adler (DeputyPresident); Judge Aliasof

PrecisThe cause of the action was the cessation of Joanna Yehiel's

employment, following a change in ownership of the "JerusalemPost" newspaper in the beginning of 1990. The Plaintiffcontended that she should be deemed to have been dismissed,because of her inability to continue working in the newspaperafter the ownership change and consequential "shift" in the polit-ical line of the newspaper.

On 23rd April 1993, Judge Elisheva Barak sitting in theRegional Labour Court accepted the claim. Judge Barak focusedon such fundamental issues as freedom of speech within theemployment relations between newspaper owners and journal-ists, property rights, and the nexus between employer, employeeand the workplace.

The "Palestine Post" (publisher of the "Jerusalem Post")appealed to the National Labour Court against the liability toseverance pay and payment in lieu of sabbatical. In a crossappeal, Joanna Yehiel, inter alia, appealed against the refusal toinclude her thirteenth salary in the severance pay calculation.

The National Labour Court dismissed the appeal of thepublisher to the extent that it pertained to liability to make sever-ance payments and allowed it to the extent that it pertained tomonetary payment in lieu of a sabbatical. The Court alsodismissed the cross-appeal in relation to the incorporation of thethirteenth salary in the compensation calculation.

The Legal IssueThe underlying legal issue in this cases depended on the inter-

pretation of Section 11(a) of the Severance Pay Law 5723-1963.Namely, to what extent the owner and publisher of a paper isentitled to intervene in the work of the journalists, and whether,even if it is legitimate for the publisher to interfere in their work,

that would constitute a change of circumstances, so that theplaintiff could not be expected to continue to work in the newcircumstances.

The Judgment of the Regional Labour CourtInter alia, Judge Barak held as follows: the owner and

manager of a workplace has the prerogative to administer theworkplace as he wishes. It is his right to try and alter the courseand nature of the work. The employer is not entitled to changethe conditions of work in such a way as to create a qualitativeworsening thereof or create circumstances in which a reasonableworker could not be required to continue his work.

For their part, a newspaper's employees and its journalistshave additional rights over and above the right to a place ofwork and the right that their work conditions not be worsened ina concrete way. They have the right to journalistic freedom. Abalance must be struck between the freedom of the owner andpublisher of the paper to decide on the political direction and theimage which he conceives for his paper; the freedom of theeditor and the journalists to guard their freedom of expressionand the freedom of the press; and the public's right to know andbe exposed to a wide range of opinions.

In the United States, the editor has the right to resign if theviewpoint of the paper is not to his liking, but the owner enjoysthe strong defence of the First Amendment. This approach isanachronistic today when the liberty of the press has acquired anunshakable status in democratic society. The journalist is not anordinary worker. In addition to the rights that every workerenjoys, the journalist has an additional liberty: the liberty offreedom of expression. Journalistic freedom is not merelyfreedom from interference or prior restraint. The publisher of apaper has the right, protected by his freedom of expression, tochoose his editor and journalists as he wishes. Additionally, hehas the right to dismiss them if their method of writing, theirstyle, the extent and nature of their criticism of the governmentalauthorities, their political opinions, and their sense of balance -are not to his satisfaction. However from the moment that thepublisher has made up his mind not to dismiss the editor, he isno longer at liberty to interfere with the editor's work unre-

He who Pays the Piper Orders the Tune

FROM THE NATIONAL LABOUR COURT OF ISRAEL

January 1995No. 4

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strictedly. He is entitled to guide him along general lines; he isentitled to ask him to ensure that articles are more balanced buthe cannot be allowed to deny or illegally restrict the editor's jour-nalistic freedom by interfering daily with the manner of writingor commenting on the opinions expressed by the editor and thejournalists.

Further, freedom of the press, from the public point of view,means that the public should not receive information, exclu-sively from, or hear only the views of he who pays the piper, i.e.,the individual who has the financial ability to run a paper.

The Judgment of the National Labour CourtIn connection with these fundamental issues President

Goldberg, giving the judgment of the Court, inter alia, held asfollows:

The Regional Labour Court commences its judgment with thewords "Is a journalist like any other worker?". The answer to thisquestion, implied by the judgment, is that where a journalist isconcerned special principles exist which must be consideredwhen examining his rights under the employment laws, and inour case, the right to severance pay.

To us it appears that on the issue of the right to severance pay,the position of a journalist is the same as that of every otherworker; though it is clear that the question whether there existedsuch matters in the labour relations in consequence of which itcannot be demanded of the employee that he continue in hiswork, depends on the profession, the nature of the work and thestatus of the employee in his workplace.

This is also true with regard to the matters in the labour rela-tions which justify resignation. In every profession and type ofwork it is necessary to examine the specific circumstances ofthose labour relations prior to deciding, upon objective prin-ciples, whether those circumstances allow one to conclude thatunder these conditions the employee cannot be required tocontinue his employment.

It appears to us that it was far reaching in the extreme to referto the approach prevailing in countries in which liberty of thepress is a cornerstone of their government and their law, andwhich in the United States is protected by the First Amendmentto the Constitution, as being "anachronistic".

The right to property and freedom of property, entrenchedtoday in the Basic Law: Human Dignity and Freedom, enableowners to manage their businesses as they wish, so long as theydo not infringe the law or a protected "basic right".

"The right of an employer in his workplace, whether it arises outof ownership or whether it arises out of the right to possessionand management, is a property right, which is recognized as abasic right (Civil Appeal 377/79 Feizer v. The Local Planningand Building Committee, Ramat Gan, 35(3) P"D 645 at p. 656;Section 3 of the Basic Law: Human Dignity and Freedom; A.Barak, Interpretation in Law, Vol. 2, at p. 467). Within thisframework, an employer is entitled to choose, subject to theprovisions of the law, the legal structure of the business which heis to establish, and the manner of management of the business.Similarly, the employer is entitled to perform his obligationsthrough his employees, by employing contractors, using sub-contractors' workers, or through workers lent to him by anotheremployer..."

Nothing in the above is intended in any way to detract from theimportance attached by the legal system as a whole and thisCourt to freedom of the press and freedom of expression; thisCourt, responsible for preserving freedom of organization inlabour and management unions, freedom to strike and freedomof employment, is responsible, in equal measure, for the pres-ervation and safeguarding of other basic rights.

The Supreme Court has more than once considered the obliga-tion of government media to broadcast a range of views andopinions.

The Supreme Court has held as follows:In H.C.J. 243/62 Israel Film Studios Ltd. v. Grey 16 P"D 2407

at p. 2416, his Hon. Justice Landau (as he then was) held:

"A government which takes upon itself the right to determinewhat is good for the citizen to know, ultimately, is determiningwhat is good for the citizen to think; and there is no greatercontradiction than this to true democracy."

This statement, and many others, were made in relation to"freedom of speech" and its limitations in connection with theBroadcasting Authority.

The question which stands before us is whether these prin-ciples apply even in private communications media. Is everyprivate communications medium, which has received a licenceto appear in accordance with the Press Ordinance, obliged topublish every article or letter to the editor? Is the newsheet of thelargest labour federation in the country obliged to publish arti-cles opposing the universality of the federation? Is a partynewspaper obliged to publish articles which conflict with theparty line? Must a newspaper belonging to a religious partypublish articles objecting to "religious coercion"? or an item

No. 4January 1995

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supporting civil marriage? Must a newsheet of the settlerspublish an article supporting the removal of settlements from theTerritories?

"Freedom of speech" is not so far reaching.And now to the case at hand. Must a newspaper, which has

been purchased by private owners, provide a platform to therange of views in Israeli society, or, is it entitled to direct its arti-cles towards a viewpoint which is acceptable to it?

Owners of a newspaper, public bodies or private companies,are allowed and entitled to direct their newspapers to channelsfavoured by them and to prevent adverse publications. Theowner of a newspaper is entitled to determine the political,economic and cultural line of his newspaper, and is not obligedto publish in his newspaper contrary opinions. The owner of anewspaper is entitled, directly or through persons authorized forthis purpose, to require a journalist employed by him to write anarticle on a subject which he regards as important, and he mayinstruct the journalist as to the general line to be favoured. Ajournalist is not entitled, within the scope of the subject-matteron which he writes, to refuse to write that article. A salariedlawyer is not entitled to choose which client he will handle andwhich he will refuse to handle, in the same way as a salariedaccountant is not entitled to decide to which of the firm's clientshe will provide his services. All this applies to every professionor business, so long as the instructions received by the employeedo not conflict with the law, rules of ethics or conscience.

A newspaper, be it of whatever circulation, is not obliged togive "appropriate expression to different outlooks prevailingamong the public" in the same way as is required of theBroadcasting Authority, by virtue of law. It is desirable andfitting that it should do so, but it is also its right not to. Thereading public from whose purse it is sustained, will decidewhether to continue to buy that newspaper, which is one-sided inits reporting and in its opinions. If the number of readers is less-ened, advertisers will cease advertising in it, and it will not beable to survive. In the free journalism market - these are theconsiderations which must guide the owners.

The refusal of a newspaper to publish one or another article ofan employee is not an interference in that journalist's freedom ofexpression. A journalist whose editor has refused to publish hiswritings, is entitled to find, or create, a different platform forhimself, so long as the writing, even if it consists of an "unusualexpression", does not infringe public safety, public order or thecharacter of democracy. The circumstances and conditions under

which the resignation of a journalist, whose article has beenrefused publication, will be regarded as circumstances whichjustify resignation with a concomitant entitlement to severancepay, depends on the individual circumstances of each case.

We are aware that:

"Not only the speaker falls within the definition of one who exer-cises his liberties and enjoys the rights conferred upon a man in afree society. The audience of compulsory listeners or readers areentitled to hear and read the words of others, and the restrictionon the hearing and reading of the words of others is not only aninfringement of the rights of the writer or speaker but is no lessan infringement of the rights of those to whom the words areaddressed". (A.S.M. 5/86 Sapiru v. The State ComptrollerÕsOffice 40(4) PÓD 227, 240 ).

Freedom of expression is not an absolute basic right, but is rela-tive, as is every fundamental right. This is also the reason whythe Court, despite its willingness to give full effect to thisfreedom, balances it against other basic principles of our system,and since it is not entrenched in a "basic law", "every law whichrestricts freedom of expression is effective from a constitutionalpoint of view.

In this case, consideration must be given to the right to prop-erty, which is entrenched in the Basic Law: Human Dignity andFreedom. Where every person, including a journalist, may writealmost anything he wishes in a range of publications, substantialweight must be given to the right to property, and in our case - tothe right of private owners of communications media to decidewhat material should be published and what rejected.

Against the right of the owner to steer the course of his paper,stands the right of the journalist not to be compelled to write arti-cles which are contrary to his thinking and his conscience. Inappropriate cases - he has the right not to continue working in anewspaper which has been "transformed" in an extreme fashion.A journalist in a party newspaper, which is purchased by aprivate owner whose views differ fundamentally from the viewsof the party to which the newspaper belonged, is drawn into"circumstances in which the worker must not be required tocontinue his work". This is also the case where the journalist isin a non-party newspaper which is purchased by a political partyor movement. In these extreme cases, the journalist acquires acause to resign because of dismissal, by virtue of the final clauseof Section 11(a) of the Severance Pay Law, and to receive sever-ance pay at the rate determined by law.

January 1995No. 4

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I take reservation to the notion that theIsrael-Vatican Agreement puts an end totwo thousand years of bitter animosity onthe part of the Catholic Church towardsthe Jewish people". In Prof. S.Simonsohn's book: The Apostolic Seeand the Jews (Tel Aviv University, 1993)one can find the Apostle's creed towardsJews, namely: Punishment, Humiliation,Social Isolation in order to protect thepurity of the Christian faith.

In fact, Prof. Simonsohn states that theCanon Law contains various explicitPapal declarations which depict the Jewsas Christians' slaves. This concept ofJewish slavery (Servitus) stems from

cannot overlook the tremendous amountof cynicism on the part of the Holy See.

We, as Jewish Jurists, cannot disregardthe fact that the Church has not taken anystep in order to extract these anti-Jewishlaws out of its Canon Law.

Thus, one cannot, and should not, jointhose who believe that the said agree-ment really puts an end to two thousandyears of animosity.

We must remind the Holy See and itslegal advisors of the maxim Lex rejicitsuperflua, pugnantia, incongrua (Lawrejects superfluous, contradictory andincongruous matters).

Fundamental Agreement between the Holy Seeand the State of Israel: A Dissenting Opinion

Haran A. Fainstein, Judge in the MagistrateÕs Court, Rehovot, Israel

LAW

Section 11(a)

Where an employee resigns by reason of an appreciable deterioration of his conditions of employment, or inview of other matters of labour relations affecting him and because of which he cannot be expected tocontinue in his employment, the resignation shall, for the purposes of this Law, be deemed to be dismissal.

Severance Pay Law 5723-1963

Following is the legal provision considered in The Palestine Post Ltd. v. Joannna Yehiel, see p. 38 above.

Paul's Epistle to the Galatians. Thispolicy towards the Jews was imple-mented through law, regulations, taxesand boycott. Such legislation was appliedto many aspects of daily Jewish life suchas monetary disputes between Jews andChristians; discrimination against Jews incourts of law; denial of Jews' right totestify against Christians...

These discriminating laws have neverbeen rescinded by the Church.Consequently, when the Holy See statesin the preamble of the said Agreementthat it is "Aware of the unique nature ofthe relationship between the CatholicChurch and the Jewish people" one

No. 4January 1995

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n June 18th 1993, the Swiss Federal Chambers votedon two new criminal provisions concerning racialdiscrimination: Article 261 bis of the Swiss PenalCode and Article 171c of the Military Penal Code.

Following a demand for a referendum from extremeright wing elements, the two criminal provisions were submittedto the vote of the Swiss people on September 25th 1994; thelaws were approved. The two Articles will consequently comeinto force on January 1st 1995.

It should be noted that prior to the adoption of these twoprovisions, the Swiss criminal law did not punish racist acts assuch. However, the provisions will now allow the HelveticConfederation to adhere to the International Convention on theElimination of All Forms of Racism of 1965 ("the Convention").

The new provisions punish:* Racist propaganda, in the wide sense of the term (1st and 3rd

paragraphs).* Breach of human dignity (4th paragraph).* Refusal of goods or of a service publicly offered (5th

paragraph).

Racist PropagandaAccording to the 1st paragraph:

"Whoever, publicly, incites to hatred or to discrimination againsta person or a group of persons for reasons of their race or theirbelonging to an ethnic or religious group... will be punished byimprisonment or a fine."

It should be noted that the legislator has retained the criterion ofreligion or belonging to a religious group. Here, Switzerlandhas followed the recommendation of the European Council,

which has inspired many European states. Originally, thecriterion of religion was also intended to appear in the definitionset out in the Convention, however, it was renounced as aconcession to the Arab states, who wished to avoid the possi-bility of their conflict with Israel being judged in the light ofthis Convention. At the time, the representatives of the Arabcountries argued that the difference between Arabs and Jewswas one of religion and not of race (cf. FF. No. 20, Vol. III, 26May 1992, p. 306).

According to the 2nd and 3rd paragraphs, every person whotakes part publicly in an action of racist propaganda, in anyform, is considered to be a co-author and not a simple accom-plice. Nevertheless, he has to have actively taken a part. Theparagraph does not aim at the simple spectator. It is irrelevantwhether the propaganda is aimed at one or several persons; it issufficient that it's author speaks to an indeterminate number ofpeople (cf. op. cit. P. 307).

Breach of Human DignityThis paragraph is of particular importance since the legislator

intended to sanction the fabricators of history who disseminatetheir pseudo-scientific theories under the designation "the Lie ofAuschwitz".

The law provides:

"Whoever publicly, through utterances, writings, images,gestures, assaults or in any other manner, lowers or discriminatesin a way that breaches the human dignity of a person or a groupof persons by reason of their race, of their belonging to an ethnicgroup, or to a religion, or whoever, for the same reason, denies,grossly minimizes or seeks to dispute genocide or other crimesagainst humanity... will be punished by imprisonment or a fine."

It is of comfort to see that the Swiss Parliament considers thatthe falsification of history cannot be regarded as a simple quarrelbetween historians. It has thus admitted that behind the "thesis"

Prohibition on Racial Discriminationin Switzerland

Philippe A. Grumbach

M. Grumbach is an Advocate at the Geneva Bar; and member of the SwissSection of our Association.

O

January 1995No. 4

43

of the forgers of history, there often hides a tendency towardsracist propaganda, which can be perverse and dangerous, partic-ularly when it is targeted at young people in the form ofeducation.

The Refusal of Goods or a Service PubliclyOffered

In this paragraph the legislator penalizes:

"Whoever refuses a person or a group of persons, for reasons oftheir race, or their belonging to an ethnic or religious group, afurnishing intended for public usage."

In order to understand this paragraph, it should be noted thatrelations within the private domain are expressly excluded. Thisprovision aims at the refusal of goods or a service occurring inthe exercise of a professional activity, where, in principle, theoffer was intended for the public. The provision is primarilyconcerned with relations at work, at schools, on public transport,in hotels, restaurants, theatres, public parks and swimmingpools.

SanctionsThe legislator has provided the same sanction limits for all

forms of the commission of the crime. As indicated above, thesecrimes will be punished with imprisonment or a fine.

In serious cases, the judge has discretion to sentence aconvicted person to a maximum penalty of 3 years impris-onment, with a fine or suspended prison sentence in case ofminor offences.

ConclusionThe campaign which preceded the vote of the 25th September

1994, was extremely spirited, since its opponents hoped toconvince the Swiss people that the adoption of the two criminalprovisions would constitute a breach of the freedom of expres-sion and freedom of speech. Fortunately, the Swiss were notconvinced by these fallacious arguments and reason hasprevailed.

The Federal Tribunal has consistently held that as with anyfreedom, freedom of expression and freedom of the press, arenot unlimited.

According to Swiss jurisprudence, restrictions are admissiblein so far as they have a sufficient legal basis, respond to a public

interest and respect the principle of proportionality (cf. JDT, I, p.280; ATF 107, 1a 49c 3).

In this case, the legal asset protected by Articles 261 bis CPSand 171c CPA is the public order and not solely the dignity of aperson - targeted by the crime, but already protected under thebreach of honour provision which specifically protects the goodname of an individual. The provision relates to a crime of"abstract endangering", i.e., the incriminating behaviour per secontains an increased risk of endangering, independently of itsconcrete effect.

The only criticism which may be made of these new provi-sions lies in the fact that the Swiss Parliament has refused togive those associations whose aims are to fight against racism oranti-Semitism - the right to lodge a complaint and become a civilplaintiff on behalf of those victims who dare not complain forfear of suffering reprisals.

Nevertheless, the provisions are an advance on many similarlegislative texts now in force in Europe. It is noteworthy that theSwiss people are the only people to have been called upon togive their verdict by direct voting on a law prohibiting racialdiscrimination.

The Law of the State of Israel -An Introduction

By Dr. Ariel Bin-Nun

222 p., hard cover, (in English) 1992 edition with indices,Rubin Mass Ltd. Publishers and Booksellers

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No. 4January 1995

44

Professor Albert Paul Blaustein, 72, died suddenly on August 21, 1994.Professor Blaustein was one of the few U.S. legal scholars who helped rewrite the national constitutions ofEastern Europe after the fall of communism. Among the 80 countries which sought his advice during his 30year career were Russia, Poland, South Vietnam, Zimbabwe, Bangladesh,Liberia, Brazil, Fije and Tibet. Some of the constitutions of these countrieswere written by him personally. Professor Blaustein co-edited the 22volume Constitutions of the Countries of the World, including everynations's constitution and critical essays on the history of each.Professor Blaustein was professor emeritus at Rutgers University School ofLaw, Camden, New Jersey, where he taught constitutional law. He was aneager traveller and human rights activist, devoting tremendous energy tohis many interests.Our Association held a prominent place in Professor Blaustein's heart. Heserved as a longtime representative of the Association to the UN NGOs,and was active within the American Section.The Association mourns his loss. We send condolences to his family andmany friends.

In Memoriam

In the first and second issues of JUSTICE we reported on thelegal battle to remove the neo-Nazi film Beruf Neonazi("Profession neo-Nazi") from German screens.

Since then in an October decision the District Court of Berlinhas held that the film should not be shown in public, on thegrounds that it is used for propaganda purposes. The Court hasfurther held that the film may only be screened in schools,universities and similar institutions, within the framework ofcivil rights courses.

Attempts to seize the film have met with little success to date.According to the distributors, the film has been broadcasted onTV at full length, shown at 25 locations and almost 30 inter-national festivals, all "with great public response".

In a separate December decision by a Munich court, one of thestars of the film, Nazi speaker Bela Althans has been sentencedto 18 months imprisonment for his part in the production.Althans had been convicted of the crimes of denial of theHolocaust, incitement against a people and disparagement of thememory of the dead. In giving its decision the Court emphasizedthat the Holocaust may not be denied.

Berlin Court: Neo-Nazi film to be withdrawn;Althans sentenced to 18 months imprisonment