Influences of the Holocaust on the Constitutional Law of Israel

In an interview to the Der Spiegel on 26 January 1969, Israel’s legendary Minister of Foreign Affairs, Aubrey (Abba) Eban, has stated, referring to Israel’s borders before the 1967 Six-Day War, that “for us, the June [1967] map is synonymous with uncertainty and danger. I am not exaggerating when I say that for us it has something of an Auschwitz memory. […] This is a situation that will never be repeated in history.” While these words have been often quoted by Israeli right-wing politicians, referring to the term “Auschwitz lines” to justify their policy regarding the prolonged Israeli occupation of the West Bank, this term can also be understood to mean precisely the opposite. As suggested by the historian Dan Diner, “[the term Auschwitz lines] reveals a profound truth, […] namely that [Israel] borders of 1948/49 had indeed been legitimized by Auschwitz.”

The Jewish people’s right to political self-determination predated the atrocities of Auschwitz. However, prevailing political circumstances, particularly concerns that granting Jews this right in British-controlled Palestine might infringe upon the rights of Arab-Palestinians, who also claim the territory as their homeland, led to the denial of Jewish statehood. Even as the Nazis rose to power in Germany and enacted the Nuremberg laws in 1935, British authorities hesitated to allow Jewish refugees, facing imminent danger in Europe, to enter Palestine, let alone establish a state for the Jewish community already residing there. It was only the profound horrors of the Holocaust that compelled the international community to recognize the imperative of creating a Jewish State alongside an Arab-Palestinian State (which did not materialize due to the Arab-Palestinian leadership’s rejection of the 1947 UN Partition Plan and their subsequent initiation of a war, supported by Arab nations, aimed at thwarting the establishment of a Jewish state). Hence, Israel’s Declaration of Independence specifically acknowledges the Holocaust as a “clear demonstration of the urgency of resolving the issue of Jewish homelessness.”

The trauma of Auschwitz continues to reverberate in the collective consciousness of Israelis. It represents a profound sense of helplessness, a stark awareness of the devastating consequences of anti-Semitism and hatred directed towards Jews, and the grim memory of nations worldwide closing their doors to Jewish refugees. These experiences, for better or worse, continue to influence central policies of the state of Israel.

This national trauma manifests in Israeli laws across three primary domains: Firstly, the enactment in 1950 of a law retroactively criminalizing the actions of Nazis and their collaborators. Additionally, Israel was among the first to ratify the Convention on the Prevention and Punishment of the Crime of Genocide, including, which is highly unusual in Israel, an agreement to the jurisdiction of the International Court of Justice (an agreement now cynically exploited against Israel in its defensive actions against terror organizations in Gaza, which employ civilians as human shields and misuse civilian infrastructure for military purposes). Secondly, Israel’s formal commitment, enshrined in a Basic-Law, that “the State shall strive to secure the welfare of members of the Jewish People […] who are in straits and in captivity, due to their Jewishness”. Thirdly, the general doctrine of free speech, which prohibits the government from censoring speech solely on the basis of its falsehood, does not apply in the context of Holocaust denial publications, which are prohibited if published for the purpose of expressing support for Nazi ideology.

However, somewhat surprisingly, the primary impact of the Holocaust trauma on Israeli constitutional law has been the concerted efforts to prevent Israel from descending into a fascist, racist regime akin to Germany in the 1930s. The incorporation of the concept of Intolerant Democracy, which occupies a central role in Israeli constitutional law, was explicitly inspired by German history. In the landmark Yeredor decision in 1965, the Israeli Supreme Court justified the banning of a political party, despite the absence of explicit legislative authorization. The court’s rationale referenced the need to heed the lessons of the Weimar Republic’s experience: “[There is a] need to learn the lesson of the experience of the Weimar Republic. Perhaps it is no coincidence that the Supreme Court of the German Federal Republic [is] the first court to establish the principle that a judge must also decide based on legal principles that are not written in the statute books, and that stand above not only ordinary statutes but even above the constitution itself, as even the constitution yields to them when it is inconsistent with them.” Subsequent to this landmark decision, the legislature enacted laws prohibiting the political participation of parties that deny Israel’s constitutional identity as a Jewish and Democratic State or incite racism.

Addressing the risks posed by incitement to racism has resulted in a somewhat over-reaction, which resulted in an erosion of the protection of free speech beyond what is permissible in a free and democratic society. It induced a doctrinal shift, characterized by a move from the notion that curtailing speech is permissible only if it aims to prevent harm that is expected to materialize in two steps, to a one-step approach. The paradigmatic analysis posits that the harm that the government may legitimately aim to prevent is one that is brought about in two steps: the speaker incites, persuades, or provides information, and persons who are exposed to that message might then act to inflict harm. Accordingly, as a general rule, it is primarily the actor, rather than the speaker, who is morally (and legally) responsible for the harm. The curtailment of free speech is justified only when the speaker is morally responsible for the acts of others, especially when the risk that others may act if the speaker is not silenced is sufficiently high. Recognizing free speech as a human right entails the use of safeguards to mitigate the concern that it may be unjustifiably infringed. One such safeguard is the doctrine that such an infringement may be justified only if the risk that the expression would indeed induce others to act and inflict harm exceeds a predefined high probability threshold, thus excluding possible outcomes that are too remote in terms of their likelihood or time of occurrence.

Importantly, the evaluation as to whether this probability threshold requirement is met is made on a case-by-case basis, taking into account the specific circumstances of each expression. The Israeli Supreme Court traditionally employed this “harm-in-two-steps” approach, implementing a “near-certainty” probability threshold requirement on a case-by-case basis, without making conclusive presumptions about the risk presented by certain expressions. This legal doctrine provided an effective protection of free speech. The dividing line was set in 1984, in the context of incitement to racism. The legislature preferred to address the problem of incitement to racism by introducing the “harm-in-one-step” doctrine. According to this doctrine, the harm is not inflicted by the actions of those incited by the speaker, but rather by the mere exposure of people to certain expressions. It is caused by the very pejorative or otherwise insulting nature of the message, directed against minorities.

Curtailing incitement to racism based on the “harm-in-one-step” paradigm may be justified in highly polarized societies, such as the Israeli, where there is considerable hostility between social groups, prejudice, and inter-group fear. In such cases, the government may well have a positive obligation to nurture liberal views and to act against intolerance. The problem is that in recent years, the Knesset and the government have considerably expanded the implementation of this “harm-in-one-step” approach beyond the realm of incitement to racism, with the aim of prohibiting expressions that are deemed harmful to national sentiments or questioning the legitimacy of Israel’s Constitutional Identity as a Jewish and Democratic state.

As is often observed, the notion of safeguarding democracy through intolerance toward non-democratic expressions can paradoxically undermine democracy itself. Aharon Barak, the former President of the Israeli Supreme Court, stood in the minority with his opposition to the “harm-in-one-step” approach. Barak voiced concerns that government might abuse its authority to suppress speech by extending it beyond incitement to racism. He advocated for a nuanced, two-step approach to relevant legislation, emphasizing the need for a probability-threshold requirement. In the pivotal 1987 Laor case, Justice Barak invalidated a governmental decision to censor a theater production depicting Israeli soldiers as Nazis. In his ruling, Barak acknowledged, “[the play] compares between the Jewish boy, who smuggled pieces of jewelry under Nazi occupation, and the Arab-Palestinian boy, that did the same under the Israeli military ruling. Indeed, this element might hurt the feelings of Jews in Israel. It might hurt, for sure, the feelings of Holocaust survivors, who endured unimaginable horrors. I myself was a boy during the Holocaust, and I illegally crossed barriers guarded by the Nazi army, smuggling bread to the Ghetto. The parallel between a German Nazi soldier and an Israeli soldier wound me deeply. And yet, we live in a democratic society, where this pain is at the heart of democracy. Freedom of speech isn’t about my entitlement to hear comforting things. It’s about an individual’s right to express opinions that may evoke discomfort. It’s about tolerance toward those we vehemently disagree with.” This stance underscores a profound lesson from both past and present traumas.