Direito Israelense e Justiça de Transição: Aspectos polêmicos do sistema jurídico e debates contemporâneos da justiça de transição no contexto do conflito árabe-israelense

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Direito Israelense e Justiça de Transição: Aspectos polêmicos do sistema jurídico e debates contemporâneos da justiça de transição no contexto do conflito árabe-israelense

 A transição da ordem jurídica do mandato britânico para o Estado de Israel Regimes Jurídicos anteriores à criação do Estado: 1516 – 1917 Império Otomano 1917 – 1947 Mandato Britânico - Incorporação da ordem jurídica vigente - forte influencia do sistema da common law

A ORDEM JURÍDICA ISRAELENSE

Principais áreas do direito afetadas de maneira controversa à luz do modelo do EDD contemporâneo

Separação entre Estado e Religião Direito de Família Direito de Propriedade Direitos Humanos Direito Internacional

 1948 - Declaração de Independência “THE STATE OF ISRAEL will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations. WE APPEAL - in the very midst of the onslaught launched against us now for months - to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions. WE EXTEND our hand to all neighbouring states and their peoples in an offer of peace and good neighbourliness, and appeal to them to establish bonds of cooperation and mutual help with the sovereign Jewish people settled in its own land. The State of Israel is prepared to do its share in a common effort for the advancement of the entire Middle East. WE APPEAL to the Jewish people throughout the Diaspora to rally round the Jews of Eretz-Israel in the tasks of immigration and upbuilding and to stand by them in the great struggle for the realization of the age-old dream - the redemption of Israel.”

• Leis Básicas - poder constituinte do Knesset - Ausência de Constituição Escrita (Knesset) - As 11 Leis Básicas constituem a Constituição Escrita do Estado de Israel (Suprema Corte, “Revolução Constitucional”, 1994) 1958 - O Knesset 1960 - Terras de Israel 1964 - O Presidente do Estado 1968/1992/2001 - O Governo 1975 - A Economia do Estado 1976 - As Forças Armadas 1980 - Lei de Jerusalem 1984 - O Judiciário 1988 - A Controladoria do Estado 1992 - Dignidade Humana e Liberdade 1992/1994 - Liberdade de Ocupação 2014 - O Referendo

* Direito de familia - Não reconhecimento do casamento civil - principal obstáculo à adoção do principio da igualdade entre homens e mulheres - Judaísmo conservador e liberal - União Estável “Not giving the respondent a free ticket for his same-sex companion amounted to discrimination, since a distinction on the basis of the difference between a heterosexual and a homosexual relationship is unjustified in the context of employee benefits.” (HCJ 721/94 El-Al Israel Airlines v. Danielowitz )

* Direito à Igualdade reconhecido por Leis esparsas: Lei de Repressão ao Abuso Sexual, 1998: “The purpose of this law is to prohibit sexual harassment in order to protect human dignity, liberty and privacy and to promote equality between the sexes.” Lei dos Direitos Iguais para Pessoas com Deficiência, 1998: “The object of this Law is to protect the dignity and liberty of a person with disabilities and anchor his right to equal and active participation in society in all walks of life, as well as provide a suitable response to his special needs in such a manner as to enable him to live his life with maximum independence, in privacy and with dignity, by exploiting his fullest potential.”

* Direito de propriedade Lei Básica – A Terra de Israel, 1960 “The ownership of Israel lands, being the lands in Israel of the State, the Development Authority or the Keren Kayemet LeIsrael, shall not be transferred either by sale or in any other manner.”

- Enfiteuse

IMIGRAÇAO JUDAICA  A Lei do Retorno Right of Aliyah 1. Every Jew has the right to come to this country as an oleh**. Oleh's visa

2. (a) Aliyah shall be by oleh's visa.

(b) An oleh's visa shall be granted to every Jew who has expressed his desire to settle in Israel, unless the Minister of Immigration is satisfied that the applicant (1) is engaged in an activity directed against the Jewish people; or (2) is likely to endanger public health or the security of the State. 4A. 4A. (a) The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, 5712-1952***, as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion.”

* As sucessivas ondas migratórias revelam diversas problemáticas que desafiam o êxito da absorção de imigrantes de diversas tradições socioculturais por parte dos fundadores do Estado: - Judeus de origem árabe - Judeus sobreviventes do holocausto - Resgate dos judeus Iemenitas - Judeus da ex-URSS - Judeus Etíopes Representação Política: 1977 – Likud/Mizhrahim 1980’s Gush Etzion, Sha’as 1990’s Israel beiteinu

 Estado e Judaísmo - Observância de feriados religiosos - Símbolos do Estado - Minorias - Lei Básica, O Knesset, 1958: Rabinos são inelegíveis - Beit Mishpat (shofet) e Beit Din (dayan) HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. 1. Minister of Religious Affairs 2. Minister of Finance “The Court held that the Ministry of Religious Affairs is to operate in allocation of funds in the Ministry of Religious Affair’s budget for cemeteries on the basis of the principle of equality, as detailed in the judgment. The Court ordered the Ministry of Religious Affairs to allocate the money in its budget for the year 2000, for cemeteries of members of the various religions, in an equal manner. However, the court decided that under the circumstances of the present case there was not a justification to order that money be paid from the budget of the Ministry of Religious Affairs for the purpose of maintenance of Arab cemeteries for the year in which the petition was filed (1999).”

A GUERRA DE 1967 E ALGUMAS IMPLICAÇÕES JURÍDICAS

- Anexacao do Golan e de Jerusalem, ocupação de Gaza e da Cisjordânia - Fortalecimento do bloco neo-sionista * O Direito Interno e o Direito Internacional - Sistema Dualista - Costume internacional considerado lei interna

OPINIÃO CONSULTIVA, CIJ (2003) The Beit Sourik Case, HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel “Is the damage caused to the local inhabitants by this part of the route of the separation fence proportionate? Like the orders we considered up to this point, the question is: is the security advantage gained from the route, as determined by the commander of the area, compared to other possible alternate routes, proportionate to the additional injury to the local inhabitants caused by this route, compared to the alternate routes? Here, as well, the picture we have already dealt with reappears. The route of the fence, as determined by the military commander, separates local inhabitants from their lands. The proposed licensing regime cannot substantially solve the difficulties raised by this segment of the fence. All this constitutes a severe violation of the rights of the local inhabitants. The humanitarian provisions of the Hague Regulations and of the Fourth Geneva Convention are not satisfied. The delicate balance between the security of the area and the lives of the local inhabitants, for which the commander of the area is responsible, is upset. There is no escaping, therefore, the annulment of the order, to the extent that it applies to the central part of the fence. The military commander must consider alternatives which, even if they result in a lower level of security, will cause a substantial (even if not complete) reduction of the damage to the lives of the local inhabitants.”

 A guerra contra o terror: o ativismo judicial da Suprema Corte - Tortura Public Committee Against Torture v. Israel HCJ 5100/94 “The GSS does not have the authority to “shake” a man, hold him in the “Shabach” position (which includes the combination of various methods, as mentioned in paragraph 30), force him into a “frog crouch” position and deprive him of sleep in a manner other than that which is inherently required by the interrogation. Likewise, we declare that the “necessity defense,” found in the Penal Law, cannot serve as a basis of authority for interrogation practices, or for directives to GSS investigators, allowing them to employ interrogation practices of this kind.”

- Targeted Killings HCJ 769/02 Public Committee Against Torture v. Government “It cannot therefore be said that targeted killings‘ are prohibited by customary international law in every case, just as it cannot be said that they are permitted by customary international law in every case. Each case should be examined prospectively by the military authorities and retrospectively in an independent investigation, and the findings should be based on the merits of the specific case. These findings will be subject to the scrutiny of the court.”

- Principio da Proporcionalidade Caso Mara’abe - H.C.J. 7957/04 “We were not confronted with it in The Beit Sourik Case, since we found that there was an alternative which provides security to Israelis. How shall we solve this difficulty in the case before us? It seems to us that the time has not yet come to confront this difficulty, and the time may never come. We hope that the examination of the second of the proportionality subtests will allow the alteration of the fence route, in the spirit of our comments, so that a new route can be found, whose injury to the lives of the local residents will be much lesser than that caused by the current route. ”

- Reunião de Família

HCJ 7052/03 Adalah et al. v. Minister of Interior

“Minority opinion—President Barak, Justices Beinisch, Joubran, Hayut, Procaccia) The law violates two constitutional basic rights. It violates the right to family life, which is a derivative of human dignity, since the right to family life means the right of an Israeli citizen or resident to live with his family in Israel. The law also violates the right to equality, since only Israeli Arabs marry Palestinians from the occupied territories and therefore the only persons harmed by the law de facto are Israeli Arabs. These violations of constitutional rights lead to the law being unconstitutional, since the law does not satisfy the last condition of the limitations clause in the Basic Law: Human Dignity and Liberty, namely that the violation of the constitutional rights should not be excessive. The blanket prohibition in the law against all Palestinians between certain ages provides somewhat more security than the system of individual checks, but it increases the violation of constitutional rights considerably. In view of the small increase of security and the large increase in the violation of rights, the law is disproportionate in adopting a blanket prohibition rather than a system of individual checks. It is unconstitutional and therefore void.

Majority opinion Vice-President Cheshin, Justices Grunis, Naor) Like other countries around the world, Israel does not recognize a constitutional right that a person may have foreign members of his family immigrate to Israel. Such a right exists only to the extent that statute grants it. Therefore the law does not violate a constitutional right to human dignity. The law also does not violate the constitutional right to equality. The fact that the Palestinian Authority is de facto waging a war or quasi-war against Israel makes the residents of the territories enemy nationals. The law, in prohibiting family reunifications with enemy nationals, makes a permitted distinction between family reunifications with persons who are not enemy nationals, and family reunifications with persons who are enemy nationals. This is a permitted distinction in view of the current circumstances, and therefore the law is not discriminatory. The law was therefore constitutional. Nonetheless, the state should consider adding to the law a provision allowing exceptions in special humanitarian cases.”

ADOÇÃO DE LEIS QUE REGULAMENTAM ASPECTOS RELACIONADOS À SEGURANÇA NACIONAL: - Incarceration of Unlawful Combatants Law, 5762-2002 “This Law is intended to regulate the incarceration of unlawful combatants not entitled to prisoner-of-war status, in a manner conforming with the obligations of the State of Israel under the provisions of international humanitarian law.”

- General Security Service Law, 5762-2002 “7. (a) The Service shall be in charge of the protection of State security and the order and institutions of the democratic regime against threats of terrorism, sabotage, subversion, espionage and disclosure of State secrets, and the Service shall also act to safeguard and promote other State interests vital for national State security, all as prescribed by the Government and subject to every law.”

REFUGIADOS HCJ 7146/12 Adam v. the Knesset Regarding the Constitutionality of Amendment no. 3 to the Prevention of Infiltration Law “There are approximately 55,000 infiltrators present in Israel. Justice Arbel discussed that most of the infiltrators originate from the countries of Eritrea and Sudan, and discussed the difficulties that people from those countries experience. She also clarified that regarding citizens of Eritrea, the State of Israel today applies the international principle of non-refoulement, meaning that the state will not send a person to a place where his life or liberty are in danger.”

JUSTIÇA DE TRANSIÇÃO E PERSPECTIVAS PARA A SOLUÇAO DO CONFLITO ÁRABE-ISRAELENSE  O papel potencial da Justiça de Transição no conflito continuado?  Sociedade Civil e Justiça de Transição: debates contemporâneos  Justiça de Transição: perspectivas internacionais e comparadas:  direito penal internacional: lições do Kosovo e de Ruanda  Comissões de verdade e conciliação: lições da África do Sul

REFLEXOS DA PRIMAVERA ÁRABE PARA O DEBATE DA JUSTIÇA DE TRANSIÇÃO

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