State 'can't intervene in how a family expresses its grief'

Court overrules bid to ban Palestinians from joint memorial ceremony

Netanyahu slams ‘mistaken’ decision by High Court over annual ceremony bringing together grieving Israeli and Palestinian families

Palestinians and Israelis attend a shared memorial ceremony commemorating the fallen on both sides of the Israeli-Palestinian conflict, in Tel Aviv on April 30, 2017, as Israel marks its annual Memorial Day for fallen soldiers. (Tomer Neuberg/Flash90)
Palestinians and Israelis attend a shared memorial ceremony commemorating the fallen on both sides of the Israeli-Palestinian conflict, in Tel Aviv on April 30, 2017, as Israel marks its annual Memorial Day for fallen soldiers. (Tomer Neuberg/Flash90)

The High Court of Justice on Monday overturned a decision by the Defense Ministry to deny entry into Israel of 176 Palestinians who are to participate in a special shared Memorial Day commemoration ceremony for fallen fighters on both sides.

In its ruling, it slammed the Defense Ministry and Defense Minister Benjamin Netanyahu, who is also prime minister, for failing to abide by a 2018 ruling on the issue, and for making claims about the Palestinian participants that turned out to be incorrect.

The joint ceremony has been held since 2006 and is organized by Combatants for Peace and The Parents Circle – Families Forum (PCFF), which brings together bereaved families from both sides of the conflict. It is pitched as a pro-coexistence alternative to the standard Israeli Memorial Day events.

The ceremony is controversial, with critics accusing it of legitimizing terrorism and equating Israel’s fallen soldiers and those who attacked them. But supporters insist it represents an effort by those who have lost the most in the conflict to give meaning to their loved ones’ deaths by turning away from violence.

The ceremony has grown every year, with last year’s ceremony, held at Tel Aviv’s Hayarkon Park, drawing 7,500 participants. Among those who addressed the 2018 ceremony was author David Grossman, whose son was killed in the Second Lebanon War.

According to Monday’s court ruling, this year’s decision to bar the 176 invited Palestinians was delivered to organizers in a single-sentence note from the defense minister’s office, dated May 1, that read, “Hello, the request is denied because there is a closure on the eve of Memorial Day.”

The Israel Defense Forces generally closes West Bank and Gaza crossings to Palestinian traffic on holidays.

It is the second year in a row in which Israel’s defense minister has attempted to prevent Palestinians from participating in the ceremony.

Last year, then-defense minister Avigdor Liberman rejected requests for entry into Israel on the grounds that it would hurt the feelings of other bereaved families, “who will see in the ceremony…contempt for the dignity of those who fell in Israel’s wars.”

Illustrative: Supreme Court Justice Isaac Amit, center, arrives at the Supreme Court in Jerusalem for a court hearing, on February 8, 2018. (Yonatan Sindel/Flash90)

The court rejected the argument at the time, saying the defense minister’s reasons stepped beyond the bounds of his authority, and were “unreasonable” and “disproportionate.” It ordered that a minimum of 90 permits be issued for Palestinian participants.

Monday’s unanimous ruling by a three-justice panel, written by Justice Isaac Amit, slammed the Defense Ministry for attempting to find a way around the ruling.

“It is lamentable that despite the precedent set [in 2018], we are required again, in a kind of ‘rerun,’ to take up the same question,” Amit wrote. “We were surprised to learn from the [state attorneys] that despite the ruling in the previous appeal, the ceremony participants were not included in the long list of ‘populations excluded from the closure’ on Memorial Day and Independence Day.”

The court noted the list includes thousands of people, mostly Palestinian day laborers, teachers, and medical professionals.

The defense minister’s decision, Amit ruled, “was not made on security grounds, but on other grounds that are lost on us.”

In a statement Monday, organizers praised the ruling, saying, “Once again the High Court demonstrates that even the defense minister and prime minister [Netanyahu] does not have unlimited power.”

Netanyahu criticized the decision, saying in a statement: “The High Court’s decision is mistaken and disappointing. There should not be a ceremony that equates the blood of our sons to the blood of terrorists. That’s why I refused to allow the entry of the ceremony participants, and I believe the High Court should not have intervened in my decision.”

In the decision, Amit ordered a minimum of 100 entry permits be granted to Palestinian invitees, but emphasized that the defense minister still had the authority to exclude a specific individual from entry into Israel if there were security concerns related to that individual.

Amit repeatedly slammed the state’s arguments, delivered in the defense minister’s name, as dishonest.

State attorneys initially defended Netanyahu’s decision by claiming that the Palestinian families invited to the event were chosen because of their “relationship to terrorists killed during terror actions against the State of Israel.”

The claim that the Palestinians were connected to those who carried out terror attacks against Israelis “turned out to be incorrect, and the state retracted the claim,” the ruling noted.

In a separate statement last week, organizers of the ceremony rejected the argument by insisting that the invited Palestinians were “members of bereaved families who elected to put aside any desire for violence, terror and revenge and work with us shoulder to shoulder for dialogue and reconciliation.”

The state also argued that the decision to deny the Palestinian families entry came “in the context of the security crisis that began last weekend,” which saw hundreds of rockets fired from Gaza at Israeli communities, killing four Israelis.

But, Amit wrote, “the defense minister’s decision was given before the latest round of fighting with the terror groups that control the Gaza Strip. And it hardly needs to be pointed out that during the latest round of fighting, no general closure was imposed on the West Bank.”

Prime Minister Benjamin Netanyahu speaks during the funeral of Zachary Baumel at the Mount Herzl military cemetery in Jerusalem on April 4, 2019. (Hadas Parush/Flash90)

The ruling, which had the consent of justices Daphne Barak-Erez and Anat Baron, also included a spirited defense of diversity and personal expression when it comes to grief.

“The official memorial ceremonies are part of the national ethos and consciousness of Israel,” Amit wrote. “They express the nation’s grief, strengthen the bonds of solidarity and the deep identification with the families of the fallen who lost their loved ones. On this fateful day, the nation as a whole is wrapped in the pain of the families.

“But even in the military cemetery, we allow today each bereaved family to express itself with the right to engrave in stone a personal message. There are 99 paths to commemoration, 99 ways to express grief. Here lies the core of free expression, of personal autonomy, which grants to every person the right to write and shape their life story in their own way. In the life story of each bereaved family there is sadness, pain and infinite longing for its beloved. The defense minister cannot intervene in the path a family chooses to express its private grief, the sadness and sorrow over the premature loss of a loved one…. It is not for us to interfere in their decision.”

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