Trafic Statistics and Inernational Law

Last weekend a few newspapers in Israel published articles about the notorious Route 443, citing IDF sources who claim that, since the route was reopened to the use of Palestinian cars, in accordance with the Israeli Supreme Court decision, only five Palestinian cars, in average, use it each day (Haaretz in Hebrew, JPost in English). According to the item, sources in the IDF feel frustrated with the fact that 60 million NIS were invested in following the Supreme Court's ruling, mainly in fitting security measures to the mixed use of the route, and they doubt that such an expense was worth the result.
I have to say that, at first, I was pretty surprised by the fact that army officials dare challenging a Supreme Court decision, let alone for its financial cost. The item, that appeared simultaneously in too many media sources to be a reporter's initiative, suggest an IDF criticism directed at the Court for not putting the right price tag on the freedom of movement, or on the free movement itself. 
But, putting aside the troubling notion of an army that claims to know better than to Supreme Court how to balance human rights, isn't there a point to the IDF's claims about balancing expenses with results? 60 million NIS is not a small amount, and proportionality has always been a factor in international and constitutional law. Could it be that the Court really should have not issued a decision that forced the government to spend so much in order to protect so few?
I think that the answer is clearly no, for two reasons. First, the fact that only five Palestinians are using Route 443 every day is due, more than anything else, to the restrictions the IDF is imposing on them while trying to get on and off that road, in the form of checkpoints and blockades. If the IDF itself is the force that is preventing more common use of the road, it simply cannot claim that little use is why the Supreme Court's decision is flawed. Moreover, since the main legal justification of the land appropriations involved in making Route 443 into a highway in the first place was its benefit to local Palestinian population, it seems that alongside the IDF's duty to protect Israeli cars on the road it is also obligated to make it usable to Palestinian cars.
Second, not every financial consideration can be relevant when debating human rights. Although balancing expenses with results should always be a consideration in putting legal obligations on governments, it's clear that not every financial expense should influence the courts' deliberations. For instance, when a court needs to decide whether a government has a duty to provide a free service to its citizens (e.g. free education, free access to water, free health care)  it's relevant to consider how much such a service would cost to the government (and tax payers) before reaching a decision. The courts should definitely acknowledge the limited resources available for allocation by their orders, and not impose a financial obligation that they find unreasonable. But these financial, utilitarian considerations can only be taken into account when they are intrinsic to the right involved, so much that it is the actual right itself. The right to free education, for instance, is the government's duty to provide educational services free of charge. Since education costs money, the right to free education is, in fact, the government's duty to pay for its citizen's education. Whether or not such a right exists should depend, to an extent, on how much that duty would cost.
Freedom of movement, however, is different. The duty it imposes on the government is the duty to refrain from blocking a citizen or resident's movement. This duty is not expensive. The 60 million put into allowing Palestinians free travel on Route 443 did not pay for the governments efforts in refraining from blocking the road. Rather, it was put into balancing the free movement - the right that the Supreme Court found to be illegally infringed - with other important interests, such as security and protection of others (let alone illegitimate interests of Israeli settlement). In fact, rather than enabling free movement, the amounts spent by the IDF were put into security measures that restrict that right. Without even going into whether these restrictions are legitimate or not - they are clearly not intrinsic to the freedom of movement itself. The cost, then, is not the right the Supreme Court ruled on. Therefore, it cannot be a relevant consideration in deliberating the protection of the right itself.
To put it in different words, if someone in the IDF thinks that 60 million NIS is what it costs to follow the Supreme Court's decision, it is up to the IDF to reconsider the measures it decided on. deciding on human rights should be left to the court.

Is Gay Equality Equal?

A few days ago the Israeli Supreme Court issued a decision that forces the Jerusalem Municipality to fund the Gay Rights March organized by the local glbt (gay, lesbian, bisexual, and transsexual) organization - the Jerusalem Open House (Ynet report here, the full decision in Hebrew as a pdf file here). This decision is great news, I think, for anyone who supports glbt rights and equality. However, when I read the decision I felt troubled by it. In pragraph 54 of the decision, Justice Amit mentions that "the Israeli law regarding the gay community and its members reflects the changes that the Israeli society had gone through over the years. The Israeli society believes that the law must be indifferent to sexual orientation..." (my translation). Then Justice Amit goes over important milestones in the history of the gay struggle for legal equality in Israel and concludes, in paragraph 55, that "there's no wonder that scholars described the 1990's as the 'gay decade'... it should be mentioned that Israel's approach towards its gay population is one of the ways in which it proves it is a democratic and liberal state, unlike all other near and far states in the Middle East..." (again my translation).
Without addressing the motives of Justice Amit to compare Israel to its neighbors where such a comparison is completely irrelevant, these comments made me feel like Justice Amit, writing for the court, doesn't see glbt equality as a matter necessitated by a basic principle of justice. Rather, it is an expression of a public opinion that should be praised for its liberalism and acceptance. It should be appreciated.

And if you think that this is only an Israeli thing - yesterday the U.S. Senate voted against a bill that would allow to repeal the 'don't ask don't tell' policy of the U.S. armed forces (here). What I found amazing is not that the bill was repealed but that the bill itself made the repeal of the policy dependent on the outcome of a poll conducted by the Pentagon to survey the opinions of soldiers and find out if the change of policy would not hurt troop morale.

Somehow, glbt equality seems to be perceived as different from women's equality or racial equality. There were always people against them - but I don't think that those supporting them felt like they are doing someone a favor or that such equality depends on public opinion or the willingness of the voters to accept such equality. Is equality something that everyone deserves or does equality depend on the current beliefs of the crowd? Cause if equality should only be given to those who the public sees as equal - doesn't that make equality redundant? I mean, equality is worth something only if the political institutions are forced to provide equal rights to those that the public desires to discriminate. Otherwise, is equality a protection against discrimination at all? Is it even a right?

Human Nature

Is it only me, or is it true that most professors (and students) in gender studies are either women or gay men? I never seriously surveyed every law school faculty, but my gut feeling tends to say that this really is the case.
In a way, it's kind of sad. We teach ourselves that the law is a social tool that promotes equality to all members of society. I think that a more proper definition is that the law is a social tool through which disenfranchised minorities are able to claim their own equality. Not that this is a bad thing. It's good to have a social field in which people can struggle for their rights without violence and with a pretty good chance of getting what they deserve. It's just a shame to find out that, still, people actively fight mostly for their own rights, and much less for the rights of others. They might vigorously support such a struggle, but not really engage in its promotion.
So next time you're born into a minority group, at least make sure you're born to a relatively large and educated one. Otherwise you might find that you're really screwed.

On Nations and States: What does It Mean to be Russian?

In the past few days I had a few conversations with several people about those vague things called state, nation, and people. Some of it came up with regards to the Swiss referendum I talked about in my last post. A little bit more was in the contexts of those things that certain people tend to call 'un-American'. A friend is writing a paper about the way Russia refuses to treat people with HIV/AIDS because it is considered an evidence of moral turpitude, and therefore it is "not Russian"and undeserving of state funds. In all those cases, it seems as if the people, or maybe just some of the people, have this image of what it means to be part of a nation - something that is more than just being a citizen of the country.
Nations, in all those cases, hold certain values more important than others, and define themselves through them. "To be American means to be honest and hard working". "To be Russian means to be of moral character". "To be West-European is to be Christian, or at least to keep your religion a private matter." I can understand such sentences if they describe a reality. But then they should have started "some Americans are..." or "Most West Europeans are...". Otherwise, it is clear that they are not true statements. After all, not all Americans are honest, not all Russians are of good moral character, and so on.
I can also understand them as aspirations: "Americans/Russians/West Europeans should be...". But that's where things become dangerous. To what extent should countries educate their citizens to be one thing or the other? On one hand, I feel a liberal impulse to say that countries should be empty of any values - they should provide their citizens with fundamental services and that's it.
On the other hand, the Netherlands (or so I've heard) make immigrants sign a statement that they acknowledge the fact that in the Netherlands they are likely to see gay men show affection to each other and that they are ok with that. That sounds to me a lot like like the sentences we started with, something like "Dutch people are tolerant". This is more than just a descriptive statement - it is a demand of those who want to become Dutch. But the fact that it is a demand doesn't make it unacceptable. On the contrary, if one society has managed to create a safe haven for minorities, it makes sense for that state to protect itself from outsiders who would not be tolerant towards them. I see it as if the state weighs the well being and aspirations of gay citizens against those of intolerant immigrants (after all, the tolerant immigrants are naturalized) and rightly prefers those of its own citizens.
So it is clear that a state can educate to some values. I also think that education to good moral nature or honesty is just as valid an as targets as toleration. I even think that it's ok for a state to have a public religion. So where's the line? Why do the statements cited at the beginning of this post hurt the ear so much?
It seems to me that the answer is not in the permissive roles of the state, but in the state-nation relations. A state may attempt to educate its citizens. But pulling the population in one direction does not mean that whoever isn't pulled is not part of the nation. States may have values. Nations should not. So the United States may promote the values of honesty and hard work. But it must be recognized that you are part of the American nation even if you are lazy and deceitful, if only you are a citizen. (It's a little hard to use the Russian example since it's outrageous to think that HIV/AIDS says something of a person's morality, but let's assume for a minute that that was true -) Russia may encourage moral behaviour. But failure to follow doesn't make you not Russian. It only makes you an immoral Russian. If you hold citizenship, you deserve treatment. It's like saying that New York is a fun place, and that the municipality encourages the exciting and eventful image of the city. But if you live in New York, you're still a New Yorker even if you're boring.
It's easy to forget that. So many times minority groups are treated as a superfluous addition to 'the real thing'. As if France is for Christians, and Muslim immigrants are factually there, but don't really belong. They could have been anywhere else just the same. As if Israel is for Jews, and the Arabs accidentally live in the same territory, they deserve rights and all, but do not count as part of the people we talk about when we refer to 'Israelies'.
Lately, the Cohen brothers' magnificent movie 'A Serious Man' was distributed in Israel under the name 'A Good Jew'. Even if disregarding for a moment the artistic vandalism - did the translators feel that Israeli Arabs would not be a potential crowd for this movie? I mean, they might not be good Jews, but I'm sure they can be serious people.

When Wolves Go to Vote

In perfect time for the Eid, the Swiss voters passed a federal referendum today, which bans the construction of minarets throughout the country. If I understand the process correctly, then according to Swiss law any popular initiative is subject to the inspection of the Federal Council, which examines whether it is in breach of mandatory international law. If it is not, the initiative goes to public vote, and from that point on it cannot be struck down by any national institution based on its merit. The Swiss people, then, are an ultimate sovereign of Switzerland - their will is law, and it is not subjected to any constitutional restrictions.
There's a lot to say about this referendum. First, it is interesting to see how in so many instances democracy in it's most 'raw' form can be destructive to minority groups' rights. Much like California's Proposition 8 which banned gay marriage, the Swiss ban on minarets is a perfect example of the famous saying that "democracy is two wolves and a lamb voting on what to eat for lunch." If majority vote is all that counts, minorities are in extreme and constant danger of losing their rights every time they seem to contradict majority values or interests.
Another point is that this referendum doesn't even pretend to apply equally to everyone. It doesn't prohibit all constructions for religious purposes from exceeding a certain height, but targets only construction of one specific kind of religious architecture - the Muslim kind. Some might say that this is a good thing, since the referendum does not hide its purpose behind vague language. To cite another famous saying, "the law prohibits both rich and poor from sleeping under bridges. Surprisingly, only the poor are ever arrested for breaking that law." So according to this line of argument, at least this referendum did not use general language that "accidentally" applies only to Muslim structures, but made it very clear what it's targeting. That way, at least everyone knows what they are voting about.
Still, there's something discomforting about the fact that restrictions apply to one religious community and not to another. According to the official Federal Administration news portal, the supporters of the ban suggest that "[minaret] constructions symbolise a religious and political claim to power that calls into question the Federal Constitution and the Swiss system of law." Since Switzerland has no official religion, one can wonder why construction of massive churches does not provoke the same claim to power as minarets do. One might also suspect that a more generally applicable language was not used simply because any referendum that would sound like a restriction on the construction of churches would not have been as favorable in a country with a Christian majority. Either way, the posters supporting the ban make it perfectly and uncomfortably clear that this is not really an attempt to keep Switzerland secular, but an attempt to keep it clean of Muslim architecture. (Watch this report.)

Saying that this is an example of the need in restrictions on the power of the sovereign is true only if one thinks that the ban is unjust. Obviously, the sovereign cannot decide on everything, and some rights should be granted to everyone, regardless of public opinion. But the Swiss Council does narrow down the issues on which the public may vote according to binding international law. So the question this case poses isn't really whether majority vote should be restricted in certain cases, but what are the cases which majority vote should be restricted in. Answering this latter question (as oppose to the former one) depends a lot on one's point of view. In certain legal systems, such as the American one, the right for equality trumps the public's power to decide as it wills, and targeting one particular group (Muslims, in this case) as the sole subject of a referendum makes it unconstitutional. In Switzerland it doesn't.
It's easy to make a moral evaluation, and say that the American system is better, because equality is more important than the majority's will. But I don't know if a legal argument can be made to the same extent. By that I mean that it's hard to find something in the legal system itself (rather than in the evaluation of its results) that would explain why a majority shouldn't be able to decide every matter, as long as it does not breach international law. The claim that a law is unconstitutional requires a constitution by which the law can be measured. If the constitution allows any kind of referendum to be passed into law (again, as long as it is permitted by international law) there is no legal principle or binding document by which the referendum can be evaluated within the particular legal system.

So maybe this is just a lesson about the (almost) infinite power of legal regimes, as oppose to their limited moral validity. It might also be a chance to make an argument against referendums in general, since we would like our laws to follow our morals, and the public is usually not the best evaluator of moral considerations. Of course, morals are debatable and maybe not one set of morals should run through the entire legal system. But that's why we need a parliament, full of legislators that feel they need to satisfy a constituency they know very little of, and to represent what they believe is its opinions and believes. This imaginative voter, as limited as it is, turns out to be much more moral than the actual one.

Cross-Defining and Trans-classifications

As Robert Cover said in his famous article "Nomos and Narrative," law is a world of definitions, which give everything and anything a meaning. The more you look at the law, the more you realize that Cover is right. A legal system is a collection of definitions - what is property, what is a binding contract, what is a citizen, what is illegal possession and so on. The law works through classifications - it creates terms and define them, then it collects together all the acts, things, and people that fall under these classifications. For example, in order to enforce a sign that prohibits the use of vehicles in the park, the law must define what is and what isn't a vehicle. Such a law would usually look like this:

"Sec 1: All vehicles are prohibited from entering the park.
Sec 2: A vehicle is a means of carrying or transporting something."

This law creates the classification 'vehicle', defines it, and then the system (usually the court which enforces the law) would apply that classification to specific objects that are involved in cases brought before it.

In certain cases and in certain legal systems, the statute might avoid a generally applicable definition of what a vehicle is, and in stead would give some examples for what it means. It could look like this:

"Sec 2: A vehicle - including cars, trucks, and motorcycles."

This is, of course, a different kind of definition. Rather than defining the term, the statute starts the process of classifying, with the intention that those who use the law (such as citizens, police officers, and courts) would inductively understand what other things can be defined as vehicles and continue the process of classification.

It's true that, even after reading the sign and the law that backs it, we might still find ourselves standing in the park, not knowing if what we are about to take onto its grounds is allowed or not. Does the sign prohibit riding bicycles in the park? And what about a monument for car accident victims, in the form of a wrecked car? Are those things vehicles? We might not know the answer to these questions, yet we know how to answer them: we must look at the thing at hand, determine whether it is part of the group of things the law is referring to, and classify it accordingly. (Now, there might be disagreement as to how to make that classification, and when such deliberation is even required. The sign in the park example was first used by H.L.A Hart and Lon Fuller in their famous debate in the 1958 Harvard Law Review, regarding the morality of law, and the way to understand it. Hart claimed that while we might not know if some things are vehicles or not, it is mostly clear to us what the law talks about when it refers to a vehicle. Fuller, on the other hand, claimed that any kind of classification requires interpretation, and that the term 'vehicle' means nothing until we look into the particular law's purpose in order to learn what it meant to say. Either way, though, we will end up with one group of things that are 'vehicles' and one group of things that are not.)

So, to sum it up, this is how the law works. It creates a classification (vehicles), and then tells us what to do or not to do with it (not let it in the park). Then anyone who uses the law (citizens, police officers, and courts) looks at the specific case that requires the application of the law and apply that classification to it (a car is a vehicle, therefore it is not allowed in the park. A bag isn't a vehicle, therefore it is allowed). This, of course, doesn't apply only to vehicles and parks. The law defines what is a 'narcotic drug' and by that divides all substances to things that are narcotic drugs and things that are not. It defines what 'rape' is, and by that divides all sexual acts to rape cases and consensual sex. The law defines rights in real property and by that classifies who is and who isn't a 'tresspassor'.

But should every human interaction be defined and classified in such a way? Should every thing in life be described as a part of a group of similar things? Could it be done at all? Think about it for a moment. Defining something by a specific term strips it - even if only for the purposes of that sentence - of everything else that thing is. It also strips us of any other classification that could be used to describe the range of things we are trying to classify. For example, saying that 'Ron is a male' strips Ron of everything else that he is: kind, student, short, brown-eyed, Dutch, vegetarian, etc. It also steals from us the distinction between different kinds of things that are all 'male' but are in reality very different from each other. If Ron is 25 years old, his male-ness is quite different from that of a year old infant who is also a male. If Ron is a homosexual it could be argued (as some do) that his male-ness is also different from that of a straight person who is also a male. But in the range of classifications that the classification 'male' is part of, these kinds of differences disappear, eventhough they are of the same metter. On this scale, one is either a 'male', 'female', or 'intersexual'. We simply do not offer any other classification, and those we offer are not enough.

There are ranges in which language has adopted a much more reasonable approach. When speaking of religions, for instance, people usually refer to themselves or others as 'Christian' (rather than 'a Christian') or 'Jewish' (rather than 'a Jew') . In the sentence 'Ron is Christian', the word 'Christian' serves as an adjective (yea yea, it might not be an adjective grammatically, but you get what I mean). It describes Ron rather than defines him. 'Ron is a Jew' sounds much more blunt that 'Ron is Jewish', that in turn leaves Ron room to be a lot of other things as well.

My point is that maybe it's time for the law to adopt a similar approach. Instead of categorizing things by defining them, perhaps the law should create a plain of categories, and then a plain of things - acts, objects, people. These plains would not mix - things won't be classified as part of categories. Rather, law would stretch a link between the thing and the category, and by that describe one attribute of that thing, leaving the thing itself undefined. Defining and classifying are attached to the object and might follow it to other contexts. So if we classify bikes as vehicles, we will have to deal with the question if they should be allowed on sidewalks (after all, other vehicles aren't) and if they should require a permit and age limit (after all, other vehicles do). And if bikes shouldn't be allowed on the side walk but shouldn't require a permit, what kind of a vehicle are they?! On the other hand, leaving aside definitions and asking just what things should be treated like when we stand at a park's gate seems a lot easier. Bikes are like vehicles in that they disturb people lying on the grass or striding in the paths. Therefore their use should be prohibited in the park. We don't know if bikes are vehicles, and we don't care. What we do know is that bikes have one vehicle-ish attribute to them, and that leaves them outside the park's premises.

This all becomes much more acute when we start talking about gender (cause really, bikes were only the introduction). If Ron was born in a man's body but identifies as a woman, is Ron a man or a woman? The law answers that with a clean cut - you are what your body is. The even less liberal answer is, of course, you are what you were born as. And that could lead to cruel and unusual results. Nonetheless, in certain instances gender cannot be disregarded altogether. By classifying Ron as either a man or a woman the law is unable to answer the complexity of the situation. However, by not asking that question, and asking instead 'how a person should be treated in a certain case', we can avoid the useless definition of what Ron is. For example, in legal issues related to sexual conducts a person should be treated according to the way he or she defines her or himself. That is, if one sees oneself as a male regardless of female genitalia, than one is not impersonating another when introducing himself as a male to potential sexual partners. (Unfortunately, courts tend to rule otherwise. See here in two pages and here in much more.) At the same time, when sentencing one to prison, it might be best to incarcerate all those who show a complex gender-identity with other women, rather than with other men, regardless of self-definition, in order to protect their safety. That doesn't mean they are women, it only means that in this case they should be treated the same way women do. On medical records, however, people should be registered according to their physical gender, in order to receive the appropriate treatment in case of emergency. This too doesn't mean they are what they are registered as in those records. Only that they would be treated as such if and when the need arises.
The world is too complex to be seen only through traditional legal eyes. Definitions and classifications change according to circumstances and in time, and the law must be responsive to these changes. If human existence is complex and diverse, the law should accommodate this diversity in order to reflect real life, rather than limit it into its self-created boxes.

And this is really interesting too.

Going Slow and Social Justice

Watching Justice Ruth Bader Ginsburg of the US Supreme Court interviewing on C-Span made me think of the thin line between adjudicating a dispute and adjudicating a social problem. One of the questions the moderator addressed to Justice Ginsburg was about the effect the Supreme Court's ruling had on society, and Justice Ginsburg answered that the court should always be careful not to make wide ranging rulings before it knows what other cases are out there. As an example, she mentioned a series of cases from the 1970's in which the Supreme Court declared that women are a 'suspicious classification', to which greater protection is given. She said that when the Chief Justice decided that his opinion is going to make this statement she felt as if the court still doesn't know enough about "what's out there" and that it should wait at least for 7 or 8 more cases before reaching that conclusion. One or two cases, according to her, were simply not enough to learn the territory well enough to make a decision that's wider than the case at bar itself. It was "too soon" (that's the term she used) to know how women are treated in the workplace and other environments, for the court to be making new rules that would apply to all women, rather than just the specific women that choose to approach the court with their case. While the court can easily study the facts of the single case in front of it through looking into evidence and listening to witnesses, it is not so well equipped to learn about society in general and implement policies that strife to make big changes.

I'm not sure how much I agree to this approach. At first glance, it's true - the courts (perhaps as opposed to a parliament) don't know "what's out there." The court's knowledge of society is limited to what the parties choose to bring before it, and everything it learns is in relation to the specific event that is adjudicated at that time. One could see how this would require a restraint decision, that would not exceed the limits set on the court by its own procedure. But Justice Ginsburg's approach seems to ignore two major factors: the first is the effect a single case has on society even when it does not include general statements; and the second is the effect this approach has on the particular litigants bringing their case before the court.

A court's decision on socially or politically important matters has an effect bigger than the case itself. Interesting verdicts are usually reported in the news, and many times inaccurately. The media, always looking for the story, would not go into the legal details that makes the legal decision applicable only to the one specific case that was decided. On the contrary, in order to make every report more interesting, it's more likely that the general sides of every decision would receive much greater attention. If that's true, while, on a legal level, the verdict remains particular and the court remains socially cautious, on a public level the verdict received a widespread effect nonetheless. It seems to me that Justice Ginsburg, in this sense, thinks in concepts of social effects that are somewhat outdated.

In addition, on not less important, Justice Ginsburg's approach has an effect over the particular parties depending on the court's ruling and their incentives. If, for instance, the court refrains from ruling the women are a 'suspicious classification' until it had heard several cases leading to that result, it means that the first woman to bring her discrimination case before the court would be treated differently than the seventh or tenth woman to do so. While in later cases women would enjoy the benefits of being recognized as a group that is likely to be discriminated against, and therefore need to prove much less in order to win their case, the first woman to approach the court would not enjoy those benefits. In fact, she is much more likely to loose than they are. This seems to be problematic both on a particular level and on a social level. On a particular level, the courts, that are supposed to treat all similar cases equally, treats similar cases differently just because one preceded the other. That goes against everything the common law system stands for. On a social level, this result prevents change from happening, by creating an incentive for people who feel that their rights have been breached to wait until someone else brings their suit first. Since people are more likely to win their case if they come later in line, there is no reason for anyone to be first. That way, in stead of promoting a more just society through correction of social injustices, the court seems to promote status quo, in which disenfranchised groups are deprived their rights.

Face, Race, and Impartiality

(I came to thinking about the following issue after reading the Goldstone report, but thoughts of this sort are running through my mind for quite some time now. I'm casting this stone into the cyber pond in hope that maybe someone would have something to add. As you will see, this is all just a beginning of a thought with no conclusion.)

The Goldstone report was issued by the committee of the Human Rights Council appointed to investigate human rights violations during the Israeli operation in the Gaza Strip in December 2008 and January '09. Among many other points regarding both sides to the conflict, the committee noted with concern that "[o]f protesters brought before the Israeli courts, it was the Palestinian Israelis who were disproportionately held in detention pending trial."
This conclusion seems to fit in well with my little experience with the Israeli system. To be clear, I have never seen or heard of a case in which a judge has intentionally or knowingly discriminated against a Palestinian Israeli brought before him. Not even close. However, unintentional and unconscious discrimination is quite clearly taking place.
The Israeli detention procedure is one of the most liberal detention processes that I know of. The police has the right to hold a person for detention only for a very limited number of reasons, and such a person must be brought before a judge or released within 24 hours from the time of the detention. Once a hearing is held, the judge may extend the detention only if the detainee is dangerous to his surroundings or the public in general, if he is likely to flee before his trial, or for special investigatory purposes.
Now, since the trial has not yet begun, the judge in the hearing is confronted with preliminary evidence provided by the prosecution, and an alternate explanation provided by the defense. After hearing both sides the judge must decide whether one of the reasons for detentions mentioned above applies, or whether the detainee can be released (either to house arrest or with no limiting conditions). Without conducting the survey, it seems to me that the most common reason used for prolonging of detention periods is that the detainee is that of the 'assumption of dangerousness'.
And here's the tricky part: more than one research show, that judges tend to assume that persons of similar background as their are less dangerous than those unknown to them. To (over)simplify the argument, a judge that sees a detainee with a similar background to hers feels as if she can understand his motives and tends to judge him less severely. persons of other backgrounds are usually less empathized with and portrayed according to racial/cultural stereotypes. Obviously, this is not something that's unique to the Israeli detention procedure. The research I linked above was conducted in the USA with regards to whites, blacks and Koreans, and the same problem can be shown to exists in any multicultural state around the globe.
Yet this issue becomes more crucial in legal procedures that are based almost solely on the judge's assessment of the facts, made in order to evaluate how dangerous the detainee is. It's as if cultural and racial minorities don't stand a chance in such a procedure, and there aren't many safeguards to protect them from such inequality.

I don't have a solution to this problem. Decisions regarding detentions are and should be made quickly, based on minimal amount of evidence, and without a substantial amount of litigation or witnesses. Even appointing more justices of minority backgrounds, a desired target in and of itself, might change the general statistics, but not solve the matter of any particular detainee. For such a detainee it would still be a matter of chance, whether he will or will not be lucky enough to have his case heard by a judge of a similar background. Since the appointment of judges for cases is arbitrary, there is no reassurance for a fair trial, not in the sense of the outcome nor in the sense of equal process.
So maybe what I wanted to say is just that these kinds of statements in human rights reports always seem to me to be the most disturbing. The way I see it, the army, the police, the government, the parliament, they can always go wrong, as they all have an intrinsic amount of violence in them. But the judicial system - that is the last frontier, meant to always raise a red flag against inequality and discrimination; protect the individual against the stronger powers of institutions. I guess it's just saddening to realize that the legal system can be tainted by inequality as well.


and here, not completely related, but what seems like a sincere expression of feelings and similar concerns of an African-American father.