1.  Israel has a parliamentary regime with a unicameral legislature (‘Knesset’). The Knesset, which consists of 120 members (‘MKs’), is elected in general, representative, multi-party elections. The candidate for Prime Minister who manages to command the support of at least a simple majority of MKs receives from the President the mandate to establish a coalition and form a government. Ministers may or may not be MKs. The Government requires the confidence of the Knesset.¹ Both the government and individual MKs can propose bills. The Knesset has various committees that are involved in both the preparation of bills and function as supervisory bodies over the government.

2.  Israel does not have a complete written constitution. Following a 1950 decision known as ‘the Harari Resolution’, the Knesset enacts Basic Laws on an ongoing basis.² The Basic Laws serve as constitutional norms and are superior to legislation. Since the Knesset also enacts regular legislation, it effectively acts as both legislature and constitutional assembly. Fourteen Basic Laws have been enacted to date.

3.  Law-making is divided between Knesset legislation, judicial decisions, which serve as precedents, and government regulations and orders. Municipalities have the authority to issue local regulations.

4.  Basic Law: The Government 2001 vests the general authority to declare an emergency situation with the Knesset, and the authority to enact Emergency Regulations (‘ER’) with the government.³

5.  The Supreme Court sitting as High Court of Justice (HCJ or ‘Court’) conducts judicial review of both executive action and legislation and can invalidate legislation for inconsistency with the Basic Laws.⁴ The authority of the Court to invalidate Basic Laws is an open question, currently standing before the Court in a number of petitions.⁵

6.  Response to the pandemic has not changed the basic constitutional structure of the state. However, during the pandemic, Basic Law: The Government was amended to facilitate the establishment of a two-headed rotation-based emergency power-sharing Government and create the role of ‘alternative’ Prime Minister.⁶ The establishment of the two-headed rotation-based power-sharing government was justified as necessary in light of the Coronavirus crisis with the Government described as an ‘emergency and national unity government’.⁷ In addition, Basic Law: The State Economy was amended a few times to allow for state expenditures, despite the fact that the Budget Bill for 2020 has not been passed due to political disagreement within the government (not directly related to the pandemic), and to allow for expenditures related to the pandemic.⁸ Finally, Basic Law: The Knesset 1958 was amended to prevent: the dissolution of the Knesset due to its failure to pass the Budget Bill; to delay the final date for the passing of such bill to 23 December 2020;⁹ and to determine that elections will take place at the end of a three-year term of the current government.¹⁰ According to Article 8 of Basic Law: The Knesset, elections in Israel generally take place every four years. Basic Law: The Knesset was also amended to determine conditions that allow members of the Knesset that are appointed to the roles of ministers or deputy ministers to resign, and resume their role in the Knesset should they cease to serve as ministers or deputies.¹¹ All of these changes were related to the establishment of the power-sharing government. Petitions against a number of these changes—including regarding the constitutionality of the changes to Basic Law: The Government are pending before the HCJ.¹²

7.  Israeli law does not apply as such within the Occupied Palestinian Territories (OPT) which Israel has controlled since 1967. Various mechanisms are used to apply Israeli law specifically to Jewish settlers residing in the OPT but not to Palestinians.¹³ Accordingly specific orders were issued to enforce various measures in regard to Covid-19 towards Jewish settlers in the OPT.¹⁴ Generally this report does not address Israel’s policies towards the OPT during the Covid-19 crisis, and the measures taken by the Palestinian authorities themselves, as these are issues that merit expansive independent discussion. However, the question of Israel’s duties towards the Palestinian population will be addressed briefly in Part IV.6.

8.  As the discussion throughout Part II will show, a quartet of legal frameworks and corresponding emergency situations relevant to the coronavirus now exist in Israeli law: (1) A general emergency situation under Basic Law: The Government; (2) An emergency situation and the inclusion of coronavirus in the list of contagious diseases under the Public Health Ordinance;¹⁵ (3) A Corona Emergency under the Corona Law enacted in 2020;¹⁶ and (4) A Special coronavirus emergency under the Corona Law under an amendment to the Corona Law.¹⁷ This is in addition to the Public Health Emergency of International Concern declared by the World Health Organization (WHO) under the International Health Regulations which are also binding upon Israel.¹⁸

9.  Israel has been in a continuous state of emergency—because of its ongoing conflicts with its neighbours and with the Palestinian population—since its foundation in 1948.¹⁹ This state of emergency is currently anchored in Basic Law: The Government, which confers power on the Knesset to regularly renew by an annual declaration the state of emergency.²⁰ It has done so since the enactment of the law. The Basic Law allows the Government to issue ER during a state of emergency ‘for the defense of the State, public security and the maintenance of supplies and essential services’ while stating that ER will not be issued unless mandated by the emergency situation.²¹ The regulations may alter or temporarily suspend any law. The regulations have to be submitted to the Knesset’s Foreign Affairs and Security Committee, and expire three months after the day of their enactment unless revoked earlier by the Knesset. However, the Knesset can also prolong the force of ER by an extending statute. In the first few months of the pandemic the government used ER extensively, in fact in an unprecedented manner. As detailed in Part II.C below, more ER were issued than in any other period before, even that of wartime.²² The regulations mostly dealt with restrictions on the movement of citizens, social distancing, and contact tracing; management of the law enforcement and judicial systems; management of the labour market; and management of the market during the economic crisis. As detailed in Part II.C below, the government also used emergency powers anchored in the Public Health Ordinance, which is a regular (ie not constitutional) piece of legislation.

10.  Israel is a party to the major human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Cultural and Social Rights (ICESCR). It did not issue any notice of derogation from the ICCPR—although it may be argued that some of the measures taken may have warranted such a derogation.²³ It is also a party to the International Health Regulations. These frameworks are binding upon Israel. However, Israel’s approach to international law is a dualist one, and while the judiciary sometimes turns to international law, with the exception of the reference to the International Health Regulations in the Ministry of Health’s 27 January 2020 Order (see Part II.B below),²⁴ international law has not played any significant role in the legal discussion concerning the reaction to Covid-19.

11.  The extensive use of ER under Basic Law: The Government gave rise to criticism which manifested both in opinions issued by the Attorney General,²⁵ and in petitions to the High Court of Justice.²⁶ It was argued, based on existing case law,²⁷ that the government is precluded from issuing ER when it can approach the Knesset and initiate primary legislation.²⁸ An additional contested argument was made, that the Knesset cannot use the existing emergency situation and regulations issued pursuant to it, when the topic is not a stricto sensu state security matter. In its judgment erasing the petition which became moot, the HCJ expressed reservation from the latter position stating it does not reflect the existing case law.²⁹ Another consideration was that the early use of ER was justified in the period following the general elections held in Israel on 2 March 2020, which was a period of transition between governments and parliaments and at a time when the newly elected Knesset did not yet have functioning committees which could work on legislation. It has been argued that it was no longer justified when the newly elected Knesset became fully operative.³⁰ While the petition on the matter became moot when the Government substituted the use of the ER with new legislation (see Part II.B below), the HCJ expressed support for these arguments.³¹ It was this cumulative criticism that eventually led to the enactment in July 2020 of the so-called ‘Corona Law’ legislation.³²

12.  In addition to the authority within the Basic Law: The Government (see Part II.A above), the second most prevalent pre-Covid-19 existing legislative tool, used for measures such as quarantine, were orders made by the authority granted to the Ministry of Health under the Public Health Ordinance 1940 (PHO), a piece of legislation dating back to the time of the British Mandate which gives the Ministry expansive authority to take various sanitary measures to contain infectious diseases.³³ The statute includes general provisions regarding various public health measures which apply continuously, and two sets of conditional provisions. The first set of conditional provisions, listed under ‘Emergency Powers’ are applicable only when a declaration is made regarding the existence of severe risk from a contagious disease. During such a situation the PHO gives the Ministry of Health special powers with regard to preventing the spread of the disease, beyond the general ones the statute accords. The second set of conditional provisions are applicable only in regards to diseases listed in a schedule to the PHO—which lists contagious diseases of international concern that require immediate notification according to the International Health Regulations (2005).

13.  Based on the PHO, the Minister of Health issued a declaration on 27 January 2020 declaring Covid-19 as a dangerous contagious disease which may create a severe risk to public health,³⁴ thus invoking the ‘emergency powers’. On the same day the Minister issued an order adding the novel coronavirus to the list of contagious diseases of international concern.³⁵ Given both declarations, the full scope of authority under the PHO can be used, and orders were issued including isolation, quarantine, restrictions on gatherings, and the duty to wear masks in the public sphere (see Part II.C below).

14.  In addition to an enumerated set of limited powers, Article 20(1)(c) of the PHO contains a ‘basket clause’ enabling the Minister of Health to order or regulate ‘any matters or things that will be found desirable for the prevention or the alleviation of the disease.’ However, issues of restrictions of movement of citizens in general (‘lockdown’) were addressed not through the PHO but through the ER issued under Basic Law: The Government—until specific new legislation was made.

15.  The PHO was amended in August 2020 to include provisions for enforcement and penalties (see Part IV.B below), and to grant the authority to demand information for epidemiological investigations.

16.  On 23 July 2020, the Knesset enacted the Law of Special Authorities to Deal with the Novel Coronavirus (Temporary Provision) 2020 (‘Corona Law’),³⁶ which allows the government (rather than the Knesset) to declare ‘an emergency situation because of the coronavirus’ if it is convinced that there is a real risk of the virus spreading and of significant damage to public health. The legislation of the Corona Law was preceded by a so-called mini-Corona law, which was legislated in June 2020 while the process of legislation of the ‘Big Corona Law’ as it was nicknamed was pending. The ‘mini-Corona law’ expired in August 2020.³⁷ Subject to a sunset clause, the Corona Law will expire (unless extended) on 30 June 2021. Any declaration of a Covid-19 emergency will be in force for up to 45 days, but can be prolonged, subject to parliamentary approval, for additional periods of 60 days each. Parliament can also revoke the emergency situation declaration at any time. The entry into force of the Corona Law automatically triggered a declaration of emergency, which lasted 45 days,³⁸ and has been extended a few times since, being currently still in place.³⁹

17.  The law gives the government, during a declared Covid-19 emergency, the authority to issue temporary regulations as needed to prevent virus infection and spread, reducing diseases, or protect populations at risk. The government must consider alternatives to the measures taken, and the impact of the measures on civil rights and on the economy. They can be, depending on the type of regulation, in force for a maximum of 7, 14, or 28 days, when they lapse unless extended by the government. The regulations must be submitted to a Knesset committee, which can approve or reject them within 24 hours. If the committee takes no action within 24 hours, the regulations will enter into force. Thereafter, the committee can still scrutinize them and approve or reject them within 14 days. There are different time windows for different type of regulations, and provisions about votes in the plenary if the committee did not decide on the regulations within the elaborated time frames. For purpose of brevity, these provisions are not detailed in the text.

18.  The measures taken by the government under the new Corona Law continue some of the measures of the ER issued previously: eg restrictions on activities in the public and private sphere, restrictions in the workplace, on events, educational and welfare institutes, and on transport. However, the restriction on education that was in place before the Corona Law, was anchored in orders based on the Public Health Ordinance and not on ER. The Corona Law also authorizes ordering a cordon sanitaire for areas with greater spread and rates of disease. The law thus replaces Basic Law: The Government as the main source for regulations which were not issued under the PHO—which continues to be an independent source of orders, eg, regulating isolation, quarantine, and the wearing of facial masks.

19.  The authority the Corona Law gives the government is on one hand similar to that which it had before and exercised through ER issued under Basic Law: The Government, but narrower in the sense that it includes a closed list of measures that can be issued based on it—unlike the more general authority regarding the content of the ER under Basic Law: The Government. At the same time, the law creates a new mechanism for the government to issue regulations in a way that expands executive law-making power. ⁴⁰

20.  Amendment No. 2 to the Corona Law, legislated in September 2020,⁴¹ illustrates best how the creation of such a new mechanism can be used to further expand the executive power in controversial ways. The amendment allows the government to declare ‘a special emergency situation because of the corona virus’, within an existing (non-special) coronavirus emergency. The main change in this new creation is the possibility in the ‘special emergency situation’ to put restrictions on demonstrations that were exempted from such restrictions under section 7(a)(1)(g) of the Corona Law prior to Amendment No. 2. In a development regarded by some as motivated by political rather than medical grounds,⁴² Amendment No. 2 enables Government to restrict participation in a demonstration to one kilometre from one’s home during a ‘special’ coronavirus emergency. Upon entry into force, the Amendment declared a ‘special emergency’ for seven days,⁴³ extended once by telephone poll of members of the government and expired on 13 October 2020.⁴⁴

21.  The enactment of the Corona Law was controversial. It was argued that it awards the government too much legislative power, with insufficient parliamentary supervision. The law passed with a vote of 48 to 35 (out of 120 members),⁴⁵ and Amendment No. 2 of the Corona Law by 46 to 38,⁴⁶ with the votes in in each case being split along the coalition/opposition division. Petitions were launched to the HCJ challenging the constitutionality of both the Corona Law itself and Amendment No. 2. Among the arguments made by the petitioners was the argument that the Corona Law was legislated in an express process which did not allow for proper discussion in the Knesset, that it violates Basic Law: The Government by giving the government rather than the Knesset the authority to declare an emergency situation, that it gives the government extensive discretion and renders parliamentary supervision ineffective, and that it allows the limitation of rights in a manner incompatible with the limitation clause in the Basic Law on human rights.⁴⁷ The HCJ rejected these arguments in a judgment given on 4 April 2021 holding that the arrangement regarding ER in Basic Law: The Government is not exhaustive and that the Corona Law is one of many other cases of specific emergency legislation. The Corona Law, held the HCJ, is a piece of primary legislation which regulates the concrete medical emergency created by the pandemic. The HCJ pointed to the existence of specific Covid-19 legislation in other countries, and to the fact that while the law violates basic rights, it includes balances and restrictions within it, as well as parliamentary supervision mechanisms. The HCJ also upheld Amendment No. 2 but struck down regulations issued under it that restricted demonstrations, as discussed in Part IV A 3 below.⁴⁸

22.  Amendment No. 2 of the Corona Law reinforced existing criticism of the Corona Law and was widely seen as the outcome of an attempt by Prime Minister Netanyahu to curtail demonstrations regularly held near his official residence in Jerusalem calling for his resignation, mostly because of pending corruption charges but also because of criticism of his handling of the Covid-19 crisis.⁴⁹ For critics the legislation and especially Amendment No. 2 were part of Prime Minister Netanyahu’s ongoing attempts to consolidate the executive—and his own—power.⁵⁰ This coincided with more general arguments about Prime Minister Netanyahu’s decisions regarding Covid19 as politically motivated.⁵¹

23.  In any event, the result of the demand to use primary legislation rather than rely on the general authority in Basic Law: The Government to issue ER, created legislation that in fact gave the government new powers to issue a new kind of ER.

24.  The Corona Law is not the only piece of primary legislation—mostly enacted as temporary provisions—enacted in light of the pandemic.⁵² Other legislation can be divided into a few categories: (1) law extending Emergency Regulations on various issues, especially ones not covered in the Corona Law,⁵³ which became redundant with the legislation of the Corona Law itself;⁵⁴ (2) laws legislated as temporary provisions on a variety of issues such as civil and criminal procedure;⁵⁵ (3) laws dealing with economic issues such as economic assistance, special grants, social security, and labour;⁵⁶ (4) a law authorizing the Government to authorize the General Security Service (GSS) to do contact tracing, which follows a previous HCJ judgment⁵⁷ that restricted the government’s ability to authorize the GSS for this purpose without explicit legislative authority;⁵⁸ and (5) other laws dealing with miscellaneous issues (eg aviation).⁵⁹ Two legislative changes are of a constitutional nature and are described in Part I above .

25.  Generally, the Knesset’s legislation during the pandemic has been marked by a spike in the use of sunset clauses, which limit the duration of legislation. Of the 80 laws enacted by the 23^rd Knesset (up to 22 November 2020), 68.7% were enacted as temporary legislation with sunset clauses. The vast majority of these temporary laws (84.8%) deal with various Covid-19 related matters.⁶⁰

26.  Executive rules were used to implement the vast majority of the measures.⁶¹ They fall into four categories.

27.  The first includes ER issued by the government prior to the enactment of the Corona Law, under Article 39 of Basic Law: The Government (‘Article 39’).⁶² As indicated in Part II.A above, the authority to issue ER is not limited in terms of subject matter. Until the legislation of the Corona Law, ER under Article 39 were enacted to implement an array of measures, including, for example, to authorize surveillance and contact-tracing,⁶³ to limit movement, gathering, and the opening of businesses,⁶⁴ to impose local lockdowns and declare areas as ‘restricted zones’ (ie cordon sanitaire),⁶⁵ to impose Israel’s first country-wide lockdown,⁶⁶ to impose quarantine in state facilities,⁶⁷ to regulate the operation of the court system during the pandemic, and to authorize Israel’s GSS to use surveillance technology for contract tracing and transfer the information to the Ministry of Health.⁶⁸ ER also made certain violations of public health orders criminal or administrative offences, and prescribed enforcement measures (see Part IV.B below).⁶⁹ Pursuant to Article 39(6) of Basic Law: The Government, ER remain in force for three months, unless extended by Statute. Several ER were extended by the Knesset.⁷⁰ The use of Article 39 ER has now been superseded by the powers under the Corona Law and PHO, as detailed in Part II.B above.

28.  The second category includes orders issued under the PHO, predominantly orders regarding matters that are specified in the PHO as falling within the professional authority of the Ministry of Health. This includes, for example, orders related to isolation and quarantine,⁷¹ medical research,⁷² and the duty to wear masks.⁷³ Previously existing public health regulations, issued under the PHO, also included other matters regarding the new Coronavirus under the ‘basket clause’ cited above.⁷⁴ This authority was the basis, for example, for an order issued at the beginning of the pandemic limiting the operation of educational institutions.⁷⁵ However, since its enactment, limitations on educational institutions have been imposed through regulations issued under the Corona Law. The main significance of this change is that regulations issued under the Corona Law are subject to parliamentary committee supervision, as discussed in Part II.B above, whereas public health orders are generally not.

29.  The third category of executive rules includes regulations issued pursuant to the Corona Law. As indicated in Part II.B above, the Corona Law authorizes the government to issue regulations in order to confront the new Coronavirus (‘Corona Law regulations’). The Corona Law regulations generally replaced the use of ER. Among the measures imposed by the Corona Law regulations are; limitations on gatherings and the closing of businesses,⁷⁶ limitations on public prayers,⁷⁷ instructions regarding the operation of courts,⁷⁸ imposition of local lockdowns and designation of restricted areas,⁷⁹ imposition of a general lockdown,⁸⁰ limitations on the operation of airports,⁸¹ and on entry and exit to/from Israel,⁸² limitations on the operation of educational institutions,⁸³ and more. Including, for example, measures for economic redress, to be discussed in Part V below. As indicated in Part II.B above, the authority of the government to issue Corona Law regulations is expansive, and regulations enacted under the Corona Law are subject to the review of a Knesset Committee following their enactment. As discussed in Part III.B below, in a few cases regulations issued under this law were struck down by the HCJ.

30.  The fourth category includes regulations issued by the government and by local municipalities under pre-existing laws, but applied in response to the pandemic.

31.  A controversial issue concerns the publications of regulations and orders. Generally, regulations and orders only enter into force upon their official publication. Despite the fact that the regulations have significant implications for individual rights and daily life, regulations related to the pandemic are often published shortly before entering into force, and at least in one case, were declared to be published, but in fact were not.⁸⁴ In addition, the regulations have been argued to be unclear, difficult to understand, and their actual content often different than what was published in media outlets.⁸⁵

32.  In addition to executive rule making, specific arrangements and issues are addressed through a series of instructions and guidelines of the different ministries on matters within their respective prerogatives. The term ‘Administrative Guidance’ in Israel includes a wide and diverse array of measures.⁸⁶ Guidelines addressed to the public are binding if they are issued pursuant to a specific law or regulation. From a normative perspective, there is no clear distinction between ‘instructions’ and ‘guidelines’ in Israeli law. Public authorities are generally required to follow ‘guidelines’ or ‘instructions’, unless there are reasonable and appropriate reasons for departing from them.⁸⁷ The title ‘guidelines’ is also used by public authorities with respect to various informative materials and recommendations—for example, recommending maintaining distance between passengers on public transportation—in which case they are not legally binding

33.  The bulk of instructions and guidelines are issued by the Ministry of Health and published on its website.⁸⁸ Such guidance concerns various topics, including, for example, the operation of public pools, schools, and public transportation. Generally, the subject matter of such instructions is more specific than that of executive rule making, and they address matters such as the number of people that may enter a certain space, the seating arrangements on public transportation, etc. In addition, they often contain ‘softer’ language, such as instructions to maintain a certain distance ‘if possible’. Guidelines published by the Ministry of Health address issues such as the manner in which masks should be worn, guidelines for caregivers of geriatric patients, guidelines for quarantine of flight attendants, guidelines for testing for the coronavirus, and more. The distinction between instructions and guidelines is not entirely clear, and the language of a specific instruction or guideline may be more indicative of its status than its title.

34.  Other ministries also publish instructions and guidelines. For example, the Ministry of Education published guidelines relating to operation of schools,⁸⁹ and the Ministry of Justice published guidelines regarding the operation of courts.⁹⁰

35.  The Israeli Parliament (the Knesset) is considered the source of all political power in Israel’s parliamentary democracy. Yet, as Hazan and Friedberg observe, the Knesset appears strong on paper, but it is relatively constrained in practice, particularly in its oversight role.⁹¹ The Knesset’s role in supervising the executive has been particularly challenging during the Covid-19 crisis, which has been coupled with a political crisis in Israel.⁹² Overall, the performance of the Knesset in supervising the executive throughout the pandemic can be divided into three main phases.

36.  During the first phase, from the Knesset’s elections on 2 March 2020 to the election of a new Speaker on 26 March, the Knesset was largely inoperative. During this period, the caretaker government of Prime Minister Benjamin Netanyahu, aided by outgoing Knesset Speaker Yuli Edelstein, tried to close, limit, and circumvent Parliament.⁹³ These efforts to shutdown Parliament in the name of Covid-19 were ultimately not successful, largely due to the intervention of the HCJ, which stopped the outgoing Speaker’s efforts to thwart the establishment of new committees and election of a new Speaker.⁹⁴ This judicial decision is discussed in Part III.C below.

37.  At the second phase, from the end of March to mid-May 2020, legislative oversight was established while a new government was not formed yet. The Knesset established several temporary committees. These included the usual Arrangements Committee which serves as a temporary Knesset committee overseeing all procedural matters in the Knesset, the Finance Committee, and the Defence and Foreign Affairs Committee. The Knesset also established new special committees, such as the Special Committee on Dealing with the Coronavirus (‘Special Coronavirus Committee’), and additional special committees formed to deal specifically with various other issues arising from the Covid-19 pandemic. The Special Coronavirus Committee and several of the other committees were chaired by members of opposition parties.⁹⁵ During this period, the Knesset also adapted its procedures to allow effective parliamentary operation despite the health risks and social distancing restrictions, as will be elaborated in Part III.B below. The plenum and committees continued to physically meet regularly, and the committees were relatively rigorous in exercising their oversight role.⁹⁶ The Knesset committees are the main site of parliamentary oversight of the executive, mostly through their roles in reviewing legislation or regulations, and partly in oversight debates and reports.

38.  The third phase began on 17 May 2020 when a new coalition government was established. During this phase, the Knesset continued to operate and to meet regularly. Its legislative activity increased, but its oversight of the executive was somewhat curtailed.⁹⁷ First, the coalition parties took back the Speakership and the Chairs and majority of most committees, including the Special Coronavirus Committee.⁹⁸ Second, the government that was established is the largest in Israeli history,⁹⁹ leading to a shortage in the number of MKs who could staff the committees, which limits their ability to exercise effective oversight.¹⁰⁰ Third, arrangements in the Basic Laws were amended based on the coalition agreement leading to changes that weaken the independence of parliament and the influence of the opposition.¹⁰¹ Finally, as will be elaborated in the next paragraph, the Corona Law also hampered legislative oversight.

39.  In this context, it is worth mentioning developments in the Knesset’s legislative function during the pandemic, which have a bearing on legislative control of the executive. As elaborated in Part II.C above, since mid-March 2020, the government started making extensive use of ER under Basic Law: The Government.¹⁰² These ER not only diminished Parliament’s legislative role, they also received relatively weak legislative oversight, both exacerbated by the fact that the new Knesset was still struggling to become operative.¹⁰³ When the Knesset began to function after the creation of committees and election of a new Speaker, it was argued that the government is precluded from issuing ER when the Knesset can enact primary legislation, and (after a petition to the HCJ) the government accepted this position. At this stage, the Knesset started assuming the legislative role, and passed laws to enact and prolong some of these ER, as well as legislating a variety of new laws. As mentioned in Part II.B above, this new legislation has been marked by a spike in the use of sunset clauses, which limit the duration of legislation (and thereby the duration of authorization of governmental powers), and can serve as a tool of continuous legislative oversight. During this stage, the Knesset committees, and particularly the Special Coronavirus Committee, started to exercise more active oversight of the executive. Yet, towards the end of July, the Knesset enacted the Corona Law. As elaborated in Part II.B above, this law conferred expansive powers, subject to a more stringent procedure of parliamentary scrutiny. Yet in practice, such oversight was hindered through this law. The law took away the authority to review these regulations from the Special Coronavirus Committee—whose Chair was seen by the government as insufficiently submissive to the government’s coronavirus policies—and gave this authority to four other committees that were considered more accommodating.¹⁰⁴

40.  In addition to the committees’ work, another parliamentary oversight tool is worth mentioning: parliamentary questions. Between 1 March and 18 November 2020, a total of 494 parliamentary questions were submitted, 46 of which concerned Covid-19. In comparison, during the same period last year (1 March–18 November 2019), when the Knesset was largely inoperative due to consecutive rounds of elections, only 30 parliamentary questions were submitted. Between 1 March–18 November 2018, 366 parliamentary questions were submitted.

41.  This finding about the use of parliamentary questions demonstrates a broader conclusion: the combination of the Covid-19 pandemic and the political crisis in Israel created a unique challenge for the Israeli Parliament and, in some respects, weakened the legislature vis-à-vis the executive. At the same time, and perhaps surprisingly, it also led to more parliamentary activity and more vigorous oversight than usual, particularly during the second phase when the Knesset was operating with a caretaker government. One possible explanation is that this unique situation contributed to heightened appreciation by legislators—as well as by the Court, the media, and the public—of the need for effective parliamentary oversight of Government.¹⁰⁵

42.  On 23 December 2020, the 23rd Knesset dissolved automatically after the deadline for passing the state budget expired.¹⁰⁶ The date for elections to the 24th Knesset was set for 23 March 2021. This was the fourth election in two years.¹⁰⁷ Hence, Israel was back to functioning with a caretaker government and a dissolved Knesset. The new Knesset was sworn-in on 6 April 2021.

43.  As mentioned in Part III.A above, during March 2020 there were some attempts—led by the caretaker government of Prime Minister Benjamin Netanyahu, and aided by outgoing Knesset Speaker Yuli Edelstein—to close the Knesset or limit its operation. Yet, these efforts to shutdown Parliament in the name of Covid-19 were unsuccessful.¹⁰⁸

44.  Hence, the Knesset continued to function throughout the pandemic. The plenum and the committees continued to physically meet regularly throughout the entire period. Yet, the Knesset did adapt its procedures to allow effective parliamentary operation despite the health risks and social distancing restrictions. In the plenum, there was a brief period in which there was a limit on the number of attending MKs, but this limit was soon lifted, as dispersing the MKs in the three levels of the plenum hall allowed all MKs to participate while maintaining social distancing. Therefore, the plenum maintained regular physical meetings, while virtual meetings and remote voting were not required. In committees, the operation was maintained through a combination of physical measures and digital solutions. In order to enable all MKs to participate in discussions and votes while respecting the social distancing requirements, each committee was convened simultaneously in two meeting rooms with a video connection between them. To maintain social distancing and to limit the number of those present in each room, only MKs and Knesset staff were allowed to enter the room, whereas other participants participated in the meetings using video conference. Later additional rules were adopted to allow certain MKs—mainly those who needed to be quarantined or had health risks—to also participate in debates via video conference, with some restrictions.¹⁰⁹

45.  Generally, all courts and tribunals in Israel continued to function at least to some extent throughout the pandemic, subject to some limitations, albeit they operated in limited emergency mode from mid-March to mid-May 2020, as detailed in the following paragraphs.¹¹⁰

46.  On 12 March 2020, the Justice Minister of the caretaker government, Amir Ohana, amended the existing regulations on courts procedures in special emergencies to extend his authority to limit judicial activity in public health emergencies.¹¹¹ Employing this authority, Ohana limited most non-urgent judicial activity.¹¹² This was adopted as a temporary measure for a number of days, which was later extended by the Minister several times until its final expiration on 17 May 2020.¹¹³

47.  This measure prompted much criticism, particularly as it was seen as serving the interests of Prime Minister Netanyahu, whose criminal trial was about to begin in mid-March 2020, and whose trial was indeed consequently postponed to May.¹¹⁴ It should be noted, however, that the President of the Supreme Court, Ester Hayut, published a letter defending the decision to limit the courts’ operation, and clarifying that the Minister’s decision was coordinated with the judiciary. A constitutional challenge to the HCJ against the amended regulations was dismissed without prejudice after the parties agreed to consider enacting primary legislation after the culmination of the crisis to regulate the Justice Minister’s suspension authority.¹¹⁵ The Court emphasized that its decision does not preclude petitions against new and disproportionate exercise of these regulations.¹¹⁶

48.  Hence, from mid-March to mid-May 2020, courts operated in emergency mode. This meant that most in-court hearings in lower courts were postponed, while hearings on urgent matters (and other certain specified matters) continued, either in person or by video conference. Examples of the types of judicial proceedings that continued in lower courts despite the emergency mode include: detention hearings, ongoing criminal trials where the defendant is held in detention, emergency proceedings in family courts, and civil proceedings dealing with provisional relief to avoid irreversible harm.¹¹⁷

49.  After 17 May 2020, courts resumed their normal functions, with all courts returning to full activity.¹¹⁸ This return to judicial activity was coupled with health safety measures, such as wearing face masks, placing partitions, maintaining social distance, monitoring individuals’ temperature, and restricting unnecessary public access to the courts, beyond the parties themselves. Since 18 May, the vast majority of cases have been conducted through physical presence, albeit some specific matters continue through video conference or telephone. Between 19 March and 25 July 2020, 45,051 criminal hearings were held remotely, 77% through video conference, and 23% by telephone. Between 12 May and 2 June 2020, 177 civil hearings were held remotely using video conference.¹¹⁹

50.  Even during the mid-March to mid-May 2020 period in which courts operated in emergency mode, judicial activity by the Supreme Court was only partially limited to urgent matters in the Court’s capacity as a court of appeals, whereas petitions to the Supreme Court as the High Court of Justice were not limited.¹²⁰ Judicial oversight by the Supreme Court was therefore not limited. This is crucial for the judicial oversight of the governmental and legislative coronavirus measures, because the Israeli Supreme Court also sits as the High Court of Justice, which provides administrative and constitutional review of the other branches as first instance.¹²¹

51.  The Israeli Supreme Court has therefore remained active in reviewing the other branches throughout the pandemic.¹²² Its official stance, as Justice Amit has put it, is that ‘[e]ven when the Coronavirus is roaming our streets, the muses are not silent and parliamentary and judicial oversight are not silenced.’¹²³ Hence, the Court has heard numerous petitions against the Knesset’s coronavirus legislation and the government’s coronavirus regulations and decisions, while continuing to hear cases and granting decisions in other areas of the law as well. Many of the Court’s coronavirus decisions are discussed in other sections throughout this report. Hence, the next two paragraphs will only provide a general overview of the Court’s approach to its role in the pandemic.

52.  Throughout the first year of the pandemic, the Court has generally placed less emphasis on activist substantive judicial oversight of the government’s measures themselves, and more emphasis on protecting procedural safeguards and parliament’s ability to control the government’s measures. Hence, it has appeared reluctant to second-guess the necessity of public health interventions to control the pandemic.¹²⁴ In a growing number of petitions that challenged governmental Covid-19 measures, the Court refused to intervene, while openly noting that these were ‘far-reaching restrictions … on basic constitutional rights … which, in normal times, would have been disqualified instantly as patently unconstitutional.’¹²⁵ In contrast, the Court afforded strong and even bold judicial protection to the Knesset against the government and to separation of powers principles. For example, the HCJ did not hesitate from extraordinary intervention in internal parliamentary proceedings to ensure that the new Knesset would be able to operate and to establish parliamentary oversight of the executive. It held that this was ‘one of those exceptional cases in which the intervention of this Court is required in order to prevent harm to our parliamentary system of government,’ as it opined that the outgoing Speaker’s ‘continued refusal to allow the Knesset plenum to vote on the election of a permanent Speaker undermines the foundations of the democratic process’ and ‘clearly harms the status of the Knesset as an independent branch of government.’¹²⁶

53.  Since the beginning of 2021, however, there seems to be a certain shift in the Court’s approach, with the Court demonstrating greater willingness to strike down Covid-19 measures on substantive grounds. February 2021 marked the first time in which the Court held that one of the government’s Covid-19 regulations was unconstitutional,¹²⁷ and since then, several additional judicial interventions in Covid-19 measures followed.¹²⁸ The best example of this apparent shift in the Court’s approach is its decisions regarding the government’s technological surveillance measures that authorized the GSS to track the location of Israeli citizens. In its first decision on the matter, from April 2020, the Court took a more procedural or separation-of-powers approach. It ruled that this far-reaching measure may only be authorized by the Knesset through primary legislation, while adding guidance on appropriate procedural safeguards, such as using sunset clauses in the legislation.¹²⁹ In its second decision, from March 2021, the Court exercised substantive constitutional review of the decisions adapted by the government according to the law that Parliament enacted to authorize the GSS surveillance, and held, as discussed in Part IV.A.8 below, that the sweeping use of GSS surveillance violates the right to privacy.¹³⁰

54.  Parliamentary elections to the 23rd Knesset were held on 2 March 2020. This was an unprecedented third round of elections after the April 2019 and September 2019 Knesset elections resulted in deadlock with no candidate being able to muster a majority in parliament to form a coalition government.

55.  When the 2 March election took place, the health risk from Covid-19 was already well-recognized in Israel. The Minister of Health had issued a declaration that Covid-19 was a dangerous contagious disease that may create a severe risk to public health on 27 January 2020.¹³¹ The first confirmed coronavirus case was declared on 21 February.¹³² Nevertheless, the outbreak was relatively contained at the time: by 2 March, there had been only 12 confirmed cases and no deaths.¹³³ The main challenge was the 5,089 Israelis under quarantine at the time.¹³⁴ These citizens were directed to vote in 17 designated ‘coronavirus’ polling places in outdoor tents that were set up for their safe participation in the elections.¹³⁵

56.  Before the elections, the two main contenders, incumbent Prime Minister Benjamin Netanyahu and Blue and White leader Benny Gantz, expressed concerns about ‘fake news’ and attempts to manipulate fears about Covid-19 to supress the vote.¹³⁶ To alleviate such fears, Moshe Bar Siman Tov, Director-General of the Health Ministry, issued a public statement to assure the public that it was completely safe to vote and to encourage people to exercise their democratic right, while also cautioning against relying on updates from anyone but the Ministry of Health.¹³⁷ On the morning of the elections, Health Minister Yaacov Litzman issued a similar statement.¹³⁸

57.  In the end, the pandemic did not disrupt the elections, nor did it subdue the vote. Voter turnout was relatively high (and higher than in the previous elections) at 71.52%;¹³⁹ and even in the special ‘coronavirus’ voting stations for Israelis in quarantine, voter turnout was high—80% of the 5,089 that were registered as self-isolators on election day exercised their right to vote.¹⁴⁰

58.  The next legislative elections, to the 24th Knesset, were held on 23 March 2021. Given the more complex Covid-19 situation, these elections were expected to be more complicated and more costly, with an expected 1,200 designated ‘coronavirus’ polling places for sick and quarantined voters.¹⁴¹ Eventually, a combination of 409 special ‘coronavirus’ polling places and 342 drive-through voting facilities were set up, in addition to enlarging the number of regular polling places.¹⁴² The elections went smoothly and the pandemic did not disrupt the them. Voter turn-out was slightly lower (67.44%),¹⁴³ but this is probably attributable to voters’ fatigue due to the political stalemate that resulted in four rounds of parliamentary elections in two years, rather than fear of Covid-19. Interestingly, Covid-19 and the way the government handled the pandemic did not appear to have an impact on how Israelis voted.¹⁴⁴

59.  Israel has several scientific advisory groups that are relevant for emergencies. The roots of Israeli preparedness for ‘nonconventional’ biological events stretch back to the Cold War era within Israel’s civil defence bodies and the medical corps of the Israel Defense Forces (IDF). Only by the late 1990s, in tandem with the establishment of the Israeli Center for Disease Control (ICDC), the Epidemiological Management Team (EMT) officially became an advisory body for the Israeli Ministry of Health. They also started to conduct drills for specific biological threats, and from those drills (called ‘Orange Flame’), standard operating procedures for specific threats were produced. The EMT is a multi-disciplinary team, made up of military (or ex-military, mainly from the medical corps) and non-military personnel, as well as a wide range of specialties: physicians, epidemiologists, bacteriologists, virologists, veterinarians, health policy specialists, and others.

60.  The EMT began to meet more frequently from January 2020, especially after the WHO announced Covid-19 as a Public Health Emergency of International Concern. The team is nominated by the Director General of the Ministry of Health. No summary or minutes of the meetings are publicly available. Within the Ministry of Health, there are important relevant structures that work very closely with the EMT: Public Health Services, especially the Epidemiology Section and the ICDC—which in the past used to be within the public health services then moved to the Medical Technologies, Information and Research Division—and the National Vaccination Advisory Board. All these bodies are advising the Ministry of Health and government, some of them like the EMT and National Vaccination Advisory Board also include experts from outside the government.

61.  In 2006, amid concerns about the spread of the bird flu, the Israeli government prepared a ‘Health System Preparedness Program for Pandemic Influenza’ (‘Pandemic Preparedness Plan’) with a team of more than 100 experts. The plan stipulated the division of labour between the Ministry of Defence and the Ministry of Health, with the former in charge of operating any state of emergency. Furthermore, in the event of a pandemic, the Ministry of Health should be the body to outline the public health policy, while the Ministry of Defence would be the operating body through a crisis management team and through the National Emergency Authority and Home Front Command. The program was approved in June 2007.

62.  Several bodies have been involved in the governance of the Covid-19 pandemic. First, instead of following the 2007 Pandemic Preparedness Plan during the early stages of the Covid-19 pandemic (25 February 2020), the Prime Minister determined that the Head of the National Security Council (NSC) would be responsible for the integration and coordination among the different ministries involved in controlling the outbreak. The NSC is an advisory body within the Prime Minister's office. Several scientific advisory boards were established under the NSC dealing with disease modelling, contact tracing, testing, medical treatment, and strategy. The NSC opened up an emergency management centre with representatives from each of the government ministries, divisions of the army, police, and prison services, and representatives from the national ambulance service, Magen David Adom (MDA), to centralize and optimize coordination. Second, on 23 July 2020, the government appointed a ‘Corona Project Manager’ (a senior physician and health policy expert from outside government), leading to the establishment of several advisory scientific committees, including the ‘Professional Corona Cabinet’ composed of expert medical professionals from the fields of public health, infectious diseases, health policy and management, research and development, epidemiology, and more, and a ‘barometer’ team composed of hospital managers, who are responsible for constantly updating the Corona Cabinet in real time about bed occupancy rates and alerting it to any possible insufficiencies. The task of the Corona Project Manager is to lead and manage the ‘national program to fight the Covid-19 novel coronavirus’ by integrating professional and executive bodies. The Corona Project Manager and his advisory committees are independent advising bodies, whose recommendations are not binding, but have an important role in framing decision-making.

63.  In effect, the Corona Project Manager took over some of the powers pertaining to the management of Covid-19 responses—particularly epidemiological testing and investigations, the creation of indicators, and the Traffic Light System that entail a differentiated response according to infection rates. The plan devolves power from the central government to municipalities to self-manage responses to Covid-19. The plan sets four severity scenarios based on Covid-19 morbidity and the R0 coefficient and determines the responses needed for each scenario. For example, a ‘green scenario’ means a low morbidity with low levels of restrictions for gatherings. These scenarios range from green to red, and each municipality is supposed to constantly self-classify in each scenario and respond accordingly. This plan allows local restrictions instead of centralized nationwide responses, as have been imposed so far.¹⁴⁵

64.  There have been no restrictions on the freedom of the press or of speech during the pandemic. In contrast, there have been temporary limitations on demonstrations (see Part IV.A below).

65.  Access to information has been affected during the pandemic. Generally, state authorities were not adequately equipped to handle the need for enhanced delivery of information. For example, in the early stages of the pandemic, health related information was not provided through the Freedom of Information Officer in the Ministry of Health, but through the spokesperson. Moreover, there were numerous instances of conflicting information being provided by government agencies, which were the result of the lack of overarching coordination.¹⁴⁶

66.  In addition, litigation is under way to reveal government protocols related to the fight against Covid-19. All the government meeting protocols and the background materials regarding various aspects of addressing Covid-19, from health to school closures, to economic measures, are shrouded in secrecy, due to the government’s decision to classify them as ‘top secret’. As a result, these protocols will only be revealed in 30 years, according to Israel’s State Archive regulations.¹⁴⁷ A freedom of information petition challenging this classification, demanding to reveal the protocols and background materials, has been filed by the Movement for Freedom of Information, several newspapers, and private individuals. The petition was mostly rejected, with the Court accepting that government protocols are based on government regulations, are appropriately classified, and thus exempted from the law.¹⁴⁸ However, the Court did order that the government should provide the petitioners with the background materials submitted to the government (such as research and information provided to it). In turn, the government provided the requested material, with much of the text redacted. An appeal by the petitioners was submitted to the Supreme Court on 21 January 2021.¹⁴⁹

67.  The Israeli State Comptroller and Ombudsman’s authority is anchored constitutionally. The Basic Law: The State Comptroller defines the constitutional status of the State Comptroller and Ombudsman.¹⁵⁰ Section 2(a) of the Basic Law lists the types of bodies which are subject to the State Comptroller's audit, while section 2(b) delineates the scope and depth of the audit of those bodies: ‘[t]he State Comptroller shall examine the legality, integrity, good governance, efficiency and economy of the audited bodies, as well as any other matter which he deems necessary.’ Section 4 gives the Comptroller the constitutional authority to investigate public complaints as ‘the Ombudsman.’ Israel is the only country in the world where the State Comptroller serves also as the Ombudsman.

68.  The State Comptroller has decided to conduct a comprehensive audit report on the government's response to the Covid-19 crisis on a wide range of issues. In light of the continuing crisis, the State Comptroller decided to submit to the Knesset and publish to the public an interim report.¹⁵¹ It includes chapters addressing the Tax Authority’s preparedness for the crisis and the GSS’s technological monitoring and locating system during the crisis. It also includes interim findings on various matters, regarding the health system and the education system.

69.  The report criticises the use of electronic surveillance measures on the population as part of the epidemiological investigations. The State Comptroller found that the tools operated by the GSS did not enable it to fully fulfil the mission it received. Furthermore, the outputs of the GSS’s activity reflect the risk of many individuals entering isolation, among them many who did not come in close contact with an infected individual. In other words, the use of the technological tool was found to be ineffective. Of all the contacts that went into isolation, only 3.5% were Covid-19 patients. In contrast, in a standard epidemiological investigation performed through the questioning of the infected individual, out of the contacts that went into isolation 24% were Covid-19 patients. The State Comptroller believes that the potential harm from the operation of the GSS technological tool, the widespread invasion of privacy, the inefficiency of the technological tool, and the impact upon the GSS’s operational activity, necessitate the use of alternative means.

70.  Regarding remote learning infrastructures, the State Comptroller recommended the Ministry of Education act to urgently provide the required means to pupils and teachers who do not possess such means. It also recommended that the Ministry examine the matter of increasing the use of open spaces outside schools to conduct learning and meetings during Covid-19 period.

71.  In September 2020, the State Comptroller published interim findings regarding the Government’s handling of individuals who were unemployed as a result of the Covid19 pandemic outbreak. It found that the National Insurance Institute has no real-time data on the employment of workers, their wages, and the number of job seekers following the Covid-19 crisis.¹⁵²

72.  In September 2020, the State Comptroller, in his role as Ombudsman, published a special report on handling complaints during the period of the first wave of the Covid19 pandemic.¹⁵³ During the period subject of the Report, 4,684 letters of complaint were received, of which 1,677 letters were related to the Covid-19 pandemic. Approximately 75% of the Covid-19 pandemic-related complaints were about issues directly related to the social safety net the State provided through various benefits or grants. Most of the complaints were made against the National Insurance Institute. Compared to the corresponding period in 2019, there was an increase of about 500% in complaints against the National Insurance Institute. Moreover, nearly 75% of the complaints filed were found to be justified or handled by state institutions during the investigation of the Ombudsman.

73.  In response to the emergence of Covid-19 Israel took a series of measures restricting movement and activity in the public and private sphere. The measures can be divided into three major periods corresponding to three major ‘lockdowns’ and then to the periods between lockdowns. We use the term ‘lockdown’ in its popular use, to describe a period where restrictions were imposed on people from leaving their homes, unless done within a prescribed allowed distance, or for a prescribed list of purposes.

74.  Like many other countries Israel imposed severe restrictions on gatherings and then on mobility and closure of most public and private services in March 2020. That was followed by gradual relaxation of these measures from April 2020. While some restrictions were re-imposed from July 2020, it was in September 2020 that a second ‘lockdown’ was imposed due to rising infection numbers. From October there was once again relaxation of measures, but with infection numbers rising again a third lockdown was imposed in December 2020. Many of the measures such as closure of various public facilities, schools, restaurants, restrictions on gatherings, and more, remained in place at least partly also between lockdowns—and in fact some of them were imposed even before the first lockdown—and continued after the end of the third lockdown in February 2021. However, in the period after the end of the third lockdown, remaining measures have gradually been relaxed following Israel’s successful vaccination campaign which will be discussed in Part IV.A.7 below. Major measures are discussed in this Part IV.A.

75.  The first national ‘lockdown’ was imposed on 25 March 2020, using an ER anchored in Basic Law: The Government (see Parts I and II.A above). It included restrictions on freedom of movement within Israel, in the form of lockdown, whose rules changed occasionally. In its strictest form it included prohibition of any exit out of one’s home for a distance of more than 100 metres. This prohibition had several exceptions to it such as the purchase of medicines or food, participation in demonstrations, prayers, and more, including a basket clause covering other essential needs.¹⁵⁴ While going to work was included in the exceptions to the lockdown, other rules strictly restricted the numbers of persons allowed within the workplace in order to allow for social distancing.¹⁵⁵ While for some people work from home was possible, these restrictions, combined with the closing down of various premises and services (see Part IV.A.4 below) caused many people to become furloughed or lose their job (See Part V below).¹⁵⁶ For a few weeks within the first lockdown, workers in the public sector considered non-essential were put on forced paid leave—partly at the expense of their vacation days and partly at the employers’ expense.¹⁵⁷ During major holidays, such as Passover in April 2020, there were even stricter restrictions placed upon exiting the home, in order to prevent festive family gatherings. For example, a prohibition was imposed for three days on people leaving the towns where they lived, unless required for essential foods, drugs, or services not available within the town where the person lived. During Passover eve itself, from 3pm to 7am the next day, it was prohibited to go out of the home even for food shopping.¹⁵⁸ At some stages, cordons sanitaires were imposed in areas within Israel with especially severe outbreaks, leading to general prohibitions on entry and exit from the area and restrictions of movement within them.¹⁵⁹ Restrictions were gradually eased during April and lifted in May 2020, with the opening of schools and of street shops marking the shift from lockdown to a new ‘Covid-19 routine’. The restrictions on leaving home were lifted on 5 May 2020.¹⁶⁰

76.  However, with a rise in the number of cases, some restrictions were re-imposed in 28 July 2020.¹⁶¹ On 17 September 2020 a second national lockdown was imposed, this time based on regulations anchored in the Corona Law, which had in the interim entered into force (see Part II.B above) and under the emergency declared due to Covid-19—rather than the general pre-existing one.¹⁶² On one hand this lockdown was looser than the first one, as people were allowed to go out of the home for a distance of up to 500 metres (later extended to 1km) for any purpose. Going out beyond this distance was allowed only for enumerated purposes, generally similar to those listed in the first lockdown but without a general essential needs clause. On the other hand, it was stricter as during parts of it—from 25 September 2020¹⁶³ to 18 October 2020, a period partly coinciding with the major Jewish holidays when many people do not work anyway—on-site work was allowed only for jobs defined in the regulations as essential.¹⁶⁴ Moreover, for a few weeks a ‘special coronavirus emergency’ was declared, based on Amendment No. 2 to the Corona Law, with a major change being stricter restrictions on going out for demonstrations (as discussed in Part IV.A.3 below). The lockdown was considered over when the restrictions on leaving one’s home were lifted on 18 October 2020.¹⁶⁵

77.  With the rise in number of cases a third national lockdown was imposed on 27 December 2020.¹⁶⁶ In many respects it was similar to the second lockdown, with restrictions once again imposed on leaving home, allowed for a distance of one kilometre or for enumerated reasons only. Even within the one kilometre people were prohibited from visiting other people’s homes. While at its beginning the lockdown was considered ‘softer’ than the previous ones with schools open, the restrictions were made stricter as of 8 January 2021, including the closure of schools and restriction of onsite work only for essential work. Thus, the third lockdown can be divided into the first looser period, and the second stricter one. The restrictions have been extended a few times until 7 February 2021, when the third lockdown ended.¹⁶⁷

78.  Physical exercise was among the exceptions for leaving the home. Whereas during the peak of the first lockdown exercise was also restricted to the 100 metres rule,¹⁶⁸ during the second and third lockdowns there was no distance restriction. Regulations concerning exercise allowed exercise of up to two people living together or forming a regular group in the first lockdown.¹⁶⁹ In both the second¹⁷⁰ and third¹⁷¹ lockdown it was determined that exercise should be individual or with people from the same household, and conditional on not reaching the exercise destination by motor vehicle.

79.  There have been numerous court petitions challenging the lockdown in general¹⁷² and some aspects of it, such as the cordon sanitaire declarations,¹⁷³ various restrictions on religious services,¹⁷⁴ and other related issues. With the exception of a petition regarding contact tracing¹⁷⁵ (see Part IV.A.9 below) and a petition regarding distinctions between types of shops,¹⁷⁶ the HCJ rejected all of these petitions, accepting that the restrictions on rights was done legitimately for protection from Covid-19.¹⁷⁷ However the HCJ accepted petitions regarding the restriction on demonstrations (see Part IV.A.3 below) and on entry and exit into Israel (see Part IV.A.2 below). A representative judgment, which was cited often in later cases, is one challenging the declaration of the city of Bnei Brak as a cordon sanitaire for six days, in which the HCJ held—balancing the rights violated (such as freedom of movement) with the need to protect the rights to life and bodily integrity from Covid-19—that the restriction on rights was allowed under the ‘limitation clause’ in the Basic Laws.¹⁷⁸

80.  This form of analysis drew criticism for neglecting a vertical balancing of rights versus public interest (in this context public health) for a horizontal analysis of rights versus rights, in a way that both undermines the power of rights to protect from public policy, and offers too narrow a conception of the conflicting interests at stake, as it measures the restrictions on freedom of movement and other rights in relation to ‘the right to life’ understood as needing protection from Covid-19 rather than in relation to ‘public health’. The latter is a concept that can incorporate broader considerations, both of protection from Covid-19 but also of the implications of lockdowns on health itself, given for example its effect on people’s economic wellbeing and welfare, and on access to medical treatment not related to Covid-19.¹⁷⁹ The HCJ also rejected petitions against the second lockdown, putting emphasis on the court’s reluctance to replace the discretion of the authorized professional bodes. ¹⁸⁰

81.  Restrictions on international travel can be divided into two major periods: February 2020 to January 2021 when Israel put quarantine restrictions on anyone entering the country, and prohibited the entry of people who are not citizens or residents, except for some exceptions. Starting in January 2021 stricter restrictions were put upon individuals both exiting and entering Israel, including citizens.

82.  During the first period (February 2020 to January 2021): on 2 February 2020 Israel imposed a mandatory 14-day quarantine on people entering the country from China.¹⁸¹ This was expanded later to people entering from other countries, and on 10 March 2020 expanded to include people coming from any country.¹⁸²

83.  The Ministry of Interior, which has the authority under the Entry Into Israel Law,¹⁸³ has prohibited since 18 March 2020 the entry into Israel of people who are not Israeli citizens or residents, unless ‘the center of their life is in Israel’ or they are spouses or children of Israeli citizens.¹⁸⁴ The policy was updated a few times until the imposition of the more strict prohibition of entry into Israel in January 2021. Prior to the stricter prohibition, there were exceptions which required individual approval based on family relations, planned studies in Israel, required experts, business trips, medical tourists, foreign journalists, and other detailed exceptions.¹⁸⁵

84.  At some stages the State required quarantine under its supervision (in hotels or other facilities) for at least some returning or entering travellers. This quarantine remains in place with ‘green’ countries exempted during some periods from the isolation requirements.¹⁸⁶ The rules about the location of quarantine changed and while, for the most part, home quarantine was allowed, during certain periods quarantine was required to take place in state supervised institutions for all travellers and in other periods for people returning from enumerated countries.¹⁸⁷

85.  Going to the airport for a booked flight was an explicit exception to the second lockdown, but restricted—for a short period during the ‘special emergency situation’ declared during the second lockdown—to people with tickets booked before a certain date who needed to travel for reasons allowed under the regulations. It was also possible to apply for a special permit based on special personal or humanitarian need.¹⁸⁸

86.  During the stricter period of the third lockdown, the airport exception was allowed only for flights for which tickets were bought before the beginning of this period or if the flight was for a purpose of a limited list of enumerated reasons—such as travel for providing assistance to a person in need, medical treatment, or essential work—or for travel intended for a person’s return to their permanent home outside of Israel. Exceptional permits were made possible for humanitarian and special personal needs.¹⁸⁹

87.  During the second period (January 2021 onwards): with the stricter restrictions on flights imposed in late January 2021, a total ban on entry of non-Israeli citizens was announced on 21 January 2021, with the exception of arrivals for funerals.¹⁹⁰ Anyone entering Israel had to fulfill required conditions including presenting a negative Covid19 PCR test result.¹⁹¹ From 26 January, while on the one hand the vaccination campaign (see Part IV.A.7 below) was progressing in Israel, on the other hand reports grew of new SARS-COV-2 variants developing in other countries, and further restrictions on international travel were imposed. The government’s decision was to close off flights to and from Israel first for five days, then extended to 5 February 2021, except for exceptional cases. The regulations were amended to determine that travel to the airport for the purpose of flight would be allowed only for a limited set of reasons: medical treatment, participation in the funeral of a relative, or participation in legal proceedings to which one is a party, or a move to a permanent place of living outside of Israel. Again, it was determined that special humanitarian or personal reasons could be the basis for exceptional permits. It was also regulated that foreign planes would not be allowed to enter or land in Israel from 26 January to 7 February 2021, with the exception of flights carrying freight, emergency medical or fire services flights, or flights crossing Israel’s airspace but not landing in it.¹⁹²

88.  These restrictions were replaced with a new comprehensive specific legal framework. On 4 February 2021, the Corona Law was amended (Amendment No. 6) to allow the government to issue regulations, based on epidemiological opinion, restricting the exit and entry of people to and from Israel, subject to restrictions detailed in the law, and to require people wishing to enter Israel to undertake Covid-19 testing. The law required the operation of a committee that will consider exceptional cases. The amendment also requires airline operators traveling to and from Israel to demand a negative Covid-19 test from crew and passengers.¹⁹³ On 5 February 2021, new regulations were issued under the Corona Law on this topic. The regulations prohibit the exit of a person from Israel unless they are not an Israeli citizen or permanent resident, or if they live regularly outside of Israel, or if they were allowed to exit by the committee for exceptional cases. They further prohibit the entry of a person into Israel unless permitted by the committee for exceptional cases.¹⁹⁴

89.  The regulations list reasons that should be the basis for approving exceptions, when allowing exit from or entry to Israel. These are similar to those listed in the previous regulations and cited above, but also include some additional reasons.¹⁹⁵ The list of reasons under which it was allowed to enter Israel is more limited for people who are not Israeli citizens or permanent residents than it is for citizens or permanent residents. Both exit and entry lists included a basket clause for humanitarian or special personal needs that the committee may consider. Additionally, a person who left Israel legally based on the restrictions which were in force when they left, and who lives regularly in Israel, would be allowed to enter Israel.¹⁹⁶ With the entry into force of these regulations, the regulations of the entry of airplanes were amended to determine that planes carrying passengers will not be allowed to travel into or out of Israel unless all passengers are allowed to exit or enter under the regulations on entry and exit of individuals.¹⁹⁷ Furthermore on 12 February 2021, a cap of 2000 people was put on who would be allowed to respectively enter and exit the country daily.¹⁹⁸ These developments, which were considered a de facto near closing of Israel’s main international airport (Ben-Gurion Airport), coincided with the closing of Israel’s land borders.¹⁹⁹ Further changes took place in amendments to regulations which entered into force on 7 March 2021 and eased some of the restrictions on exit and entry from Israel, for example allowing people who were vaccinated for Covid-19 to exit without a special permit. Additionally, following these changes, it was no longer required for Israeli citizens to acquire a permit to enter Israel, but a cap—this time of 3000 people—remained in force for entry into Israel.²⁰⁰ The regulations concerning flights were also amended a few times, gradually easing some of the restrictions cited above.²⁰¹

90.  The disparate effect of these regulations on Israeli citizens who could not manage to enter or exit Israel, both before and after the relaxation of the regulation on 7 March 2021, was widely reported in the press, which also reported that the committee which was supposed to give special permits did not function properly.²⁰² On 17 March 2021, the HCJ held that the regulations issued under Amendment No. 6 imposing limitations on the entry of Israeli citizens to Israel—by this stage taking only the form of the daily cap on the number of passengers allowed into the country—and on those wishing to leave the country could not be extended after they expire on 20 March 2021.²⁰³ The HCJ determined that the regulations, which were justified as a means to avoid importing new Covid-19 variants to Israel, were unconstitutional, as they violated the rights enshrined in Basic Law: Human Dignity and Liberty²⁰⁴ of every person to exit Israel, and of every Israeli citizen to enter Israel, in a way that was not proportional, given the possibility to achieve the same purpose with less restrictive measures (eg stricter supervision of quarantine) and given the severity of the restrictions on one hand and the uncertainty about their effectiveness on the other hand. The HCJ took into consideration inter alia the possible effect of the restriction of return of citizens into Israel on the right to vote in the Israeli elections, held on 23 March 2021 (Israel does not allow absentee ballot).²⁰⁵ The judgment related only to Israeli citizens and did not affect regulations restricting exit and entry of non-citizens.

91.  Regulations issued under the Corona Law on 14 August 2020 include detailed provisions about flights and airports, regarding hygiene, social distancing, and other issues, such as prohibition of entry into the airport terminal of anyone who is not about to fly within four hours.²⁰⁶

92.  Internal travel was restricted during lockdowns by the imposition of cordons sanitaires as described in Part IV.A.1 above. In addition, during lockdowns there was restriction on the use of private vehicles. For example, during the second and third lockdowns it was not allowed for someone driving a private vehicle to take more than two additional passengers—in the first lockdown only one additional passenger—unless they belong to the same household or in cases of essential need. See also the discussion of transport in Part IV.A.4 below.²⁰⁷

93.  From 5 March 2020, restrictions on gatherings were imposed. The first restriction was on gatherings of 5000 people or more.²⁰⁸ The number of people allowed in gatherings was gradually lowered significantly and during the beginning of the first lockdown stood at a limit of 10.²⁰⁹ The regulations on this issue changed during the course of the pandemic.²¹⁰ For example, during the beginning of the second lockdown, gatherings were limited to 10 people within a building and 20 people outside.²¹¹ During the third lockdown, gatherings were restricted to up to 10 people in the open air and up to 5 people inside a building.²¹² The specific number of people allowed to gather was at some stages determined according to the scope of the outbreak in specific areas. With the easement of restrictions in spring 2021, the number of people allowed to gather was increased on 6 March 2021 to 100 outside and 20 people inside a building.²¹³

94.  The issue of prayers presented a special challenge. Prayers are generally governed under the regular limitation on gatherings. As of 2 February 2020, this restriction implies limitation of prayer to up to five individuals in a closed space or 10 in an open space. During the first lockdown, there was an exemption given for prayers from the 500 metres distance limitations.²¹⁴ Such exemptions were not included in the later lockdowns. During the September 2020 Jewish holidays, special arrangements were made to allow for larger gatherings during prayers.²¹⁵ During the first lockdown, it was not permitted to pray inside a structure nor with people another household, except outdoors.²¹⁶ The HCJ rejected a petition concerning restrictions on prayers, holding that while the restrictions infringed upon freedom of religion, this right had to be deferred for the protection of the right to life, citing to the precedent described in Part IV.A.1 above, and adopting the horizontal balance approach taken by the HCJ there.²¹⁷

95.  The issue of demonstrations also gave rise to much debate: the ER issued at the beginning of the pandemic explicitly exempted participation in a demonstration from coronavirus restrictions.²¹⁸A similar exemption was included in Article 7a(1) of the Corona Law. Similarly, Article 7a includes determining conditions for the manner in which demonstrations can take place, as long as such conditions do not prevent demonstrations from taking place.

96.  The regulations regarding gatherings issued under the Corona Law also include a specific reference to demonstrations.²¹⁹ Article 4(a) of the Corona Law restricts general gatherings in open spaces to 20 individuals, subject to the requirement, stipulated in Article 3 of the Corona Law, that participants maintain a two metre distance from each other. However, Article 4(c) of the Corona Law includes a specific reference to ‘gathering as part of a demonstration’, and subjects such gatherings only to the social distancing requirements included in Article 3. It thus appears that the 20-person cap does not apply to demonstrations.

97.  Up until 30 September 2020, demonstrations were thus generally exempt from coronavirus restrictions.²²⁰ However, with Amendment No. 2 of the Corona Law and the declaration of a special coronavirus emergency situation (see Part II.B above), the government issued regulations limiting demonstrations to up to 1000 metres (one kilometre) from home, and determined that the number of participants in them is limited to 20 people, who must wear masks and keep two metres apart from each other.²²¹ The immediate effect of this measure was to halt the central protests in front of the official Prime Minister’s residence in Jerusalem that had been taking place for months. However, this resulted in numerous dispersed demonstrations being held throughout the country. The limitations on the number of people taking part in a demonstration and the distance restriction were lifted with the expiration of the special coronavirus emergency situation. On 4 April 2021, the HCJ determined that the regulations limiting demonstrations further than 1 kilometre from one’s home was unconstitutional as it violated rights in a way that is not proportional. The HCJ found the restriction to be failing both the requirement for a rational connection between the purpose of the restriction and the means, and the requirement not to use means for which there is a less restrictive alternative, and also the need for a proper balance between the scope of the restriction on the right to demonstrate on one hand and the gain to public health on the other hand. The Court did not invalidate the Amendment authorizing the government to impose distance restrictions on demonstrations, but, rather, concentrated on the regulation that imposed the restriction. Since the regulation has already expired and has not been renewed, the practical implication of the decision is the cancellation of fines distributed for violation of the regulation.²²²

98.  Schools in Israel were closed on 15 March 2020.²²³ After about two months of being closed (with some online studies taking place) they started to reopen gradually with different timings based on children’s age on 3 May 2020.²²⁴ With the second national lockdown, they closed down again on 17 September 2020 only two weeks after the new school year started,²²⁵ again with partial online teaching. Reopening was again a gradual process starting on 17 October 2020,²²⁶ first with nurseries and then schools opening gradually with various restrictions detailed in regulations addressing hygiene, distancing, division of students into groups, and other issues. When the third lockdown entered its stricter phase, all schools closed again from 8 January 2021, again with online teaching taking place. Schools remained closed even when the lockdown ended on 7 February 2021 but started re-opening gradually on 11 February 2021, with differentiation based on a ‘traffic light’ system indicating the degree of disease in different areas and between different ages. Schools fully opened from 18 April 2021. All universities shifted to remote teaching in March 2020 and at the time of writing continue to conduct classes online with some on-site classes starting to take place again as of 7 March 2021, based on the ‘green pass’ described in Part IV.A.7 below which is granted to people who have received the Covid-19 vaccination or have recovered from Covid-19, with remote participation allowed for people who do not hold the green pass.²²⁷.

99.  All shops except for essential ones (eg selling medicines and food) were closed during the three national lockdowns. The re-opening of shops between lockdowns is a gradual process. There are various distinctions between shops, open markets, and shopping malls, with the latter being closed for longer periods. This was part of broader significant limits on various businesses and public activities which engage the public. For example, during the second and third lockdowns there was a prohibition, part of which remained in force continuously between them, of operating a public or business facility, including places of entertainment, commerce, culture, food, swimming pools, gym, studios, hotels—with the exception of listed places (eg places whose main business is selling food, pharmacy, optical or hygiene products, essential products for home maintenance, laundry shops, computer and computer repair shops, and social services).²²⁸ Later some of the restrictions (eg on street shops) were lifted, but some (eg on gyms, places of entertainment, restaurants except for delivery and, for some of the time, also take away) remained in place longer, until the introduction of the ‘green pass’ discussed in Part IV.A.7 below, which allowed gyms, places of entertainment, and restaurants to operate from 21 February 2021 based on allowing only ‘green pass’ carriers.²²⁹ While restaurants were allowed to open under some conditions between the first and second lockdowns, for the most part they remained closed continuously between and after lockdowns, allowing only for take away and delivery, and during lockdowns only delivery until they reopened under the green pass for insider seating, with outdoor seating allowed for everyone.²³⁰ On 2 February 2021, the HCJ accepted a petition arguing that shops which are considered non-essential and are closed during the ‘lockdown’ are discriminated against, when compared to essential shops which are open but also sell non-essential products (eg drug stores selling toys). This, it was held, unfairly economically discriminates against the shops which are considered nonessential and are not allowed to open. The HCJ ordered the state to amend the regulations in a way that will reduce the possibility of essential shops selling nonessential products when other shops are closed.²³¹ Following this, the regulations were amended on 7 February 2021 to include a list of non-essential items that open shops would not be allowed to sell.²³² The issue became moot when all shops were allowed to reopen from 21 February 2021.²³³

100.  During the first lockdown it was also prohibited to operate amusement parks, national gardens, and nature reserves, and to enter playgrounds or use playground facilities.²³⁴ The second and third lockdowns did not include a specific prohibition on parks.

101.  During the second lockdown there was an explicit prohibition on being on the beach, except for the purpose of work or exercise.²³⁵

102.  Regulations in force during and between lockdowns put various restrictions on public transport, for example limiting the number of passengers in buses, trains, etc and including various sanitary provisions.²³⁶ The Supervisor of Transport in the Ministry of Transport was authorized to issue various instructions about the timetable of operation of public transport.²³⁷ During lockdowns, buses operated on restricted timetables and for some period during the first lockdown train services did not operate at all.

103.  The rules of the second lockdown (detailed in Part IV.A.1 above) provided that while exiting one’s home, an individual must keep a two metre distance from individuals with whom they do not share a household, be it in a public or business place. The rules also include provisions about the maximum number of people allowed in public or business places open to the public, which is calculated based on the size of the space. This was in addition to the requirement for operators of such places to work to keep two metres distance between people not from the same household. These rules continue to apply even after much of the lockdown restrictions were lifted.²³⁸ The rules of the first lockdown and later the third one were similar and the physical distancing requirement was in force between and after lockdowns, as it was never lifted.

104.  An order issued under the Public Health Ordinance on 12 April 2020 (which was revised a few times) requires that a person above the age of seven shall not be outside of their home not wearing a facial mask, unless they are actively exercising. There are enumerated exceptions including, for example, a person who is in a separated or secluded space alone or with people who live in the same household with them, or two co-workers who work regularly in the same space and maintain the two-metre distance. From 18 April 2021, the wearing of masks outdoors was no longer required, however rules remained in place requiring the wearing of masks indoors.²³⁹

105.  Isolation and quarantine requirements are generally issued under the authority of the Ministry of Health, under the PHO.²⁴⁰ On 2 February 2020, the General Manager of the Ministry of Health issued an order requiring 14 days quarantine of those returning from China.²⁴¹ The requirement has subsequently been expanded to other countries and applies today to those returning from all countries. The Order also imposes a quarantine requirement on, and determines the conditions of quarantine of, individuals with a fever of over 38 degrees Celsius and those who were in close contact with a Covid-19 patient, and prescribes the terms of isolation of those confirmed to be Covid-19 positive. The general conditions and length of quarantine or isolation in each of the categories is specified in the Order, as are the exceptions that allow shortening the quarantine period. For example, the quarantine period can be shortened to 10 days subject to two negative tests, taken at least 24 hours apart, with the second taken on the ninth day of the quarantine. Quarantine of health workers can be shortened after two negative tests are received, taken within the timeframe determined by the General Manager of the Health Ministry. The order also includes conditions for enabling individuals in quarantine to take part in elections. A separate order determines that a doctor may order a Covid-19 positive individual to be isolated in a hospital.²⁴² On 17 March 2021 the Corona Law was amended to allow electronic monitoring of quarantine for people who enter Israel from abroad.²⁴³

106.  Testing for Covid-19 has been part of the health policy since the beginning of the pandemic. The policies regarding testing varied over time. From the beginning of the pandemic until 21 October 2020 it was required to have a doctor’s referral for a test, but policy then changed to allow for any person to get tested at clinics and testing centres without referral. ²⁴⁴ However, from 7 January 2021 a referral was made necessary again for Covid-19 testing, given the rise in infections and the burden upon laboratories and clinics. Thus, it was decided to give preference to people: showing Covid-19 symptoms; those requiring quarantine following epidemiological investigations; people returning from abroad; people already in quarantine; or people who are supposed to be moving to an institution where there is a high risk population.²⁴⁵ Still, while Sick Funds (Israel’s version of HMO’s, which are non-profit and provide the medical services within the National Health Insurance System)²⁴⁶ returned to conducting only referral-based testing, there are some places where municipal testing centres run in cooperation with the army are open for everyone. Also, sample testing continues in some institutions such as retirement homes.

107.  While the broad provisions of the Public Health Ordinance could be interpreted to allow for mandatory testing, this was never the case and such an interpretation may be contested based on Basic Law: Human Dignity and Liberty and Israel’s Patient Rights Law.²⁴⁷ However, testing is required for people in certain circumstances, such as: in order to end isolation or shorten quarantine and, in some periods, in order to be able, subject to the changing regulations, board flights to and from Israel.

108.  Israel started a vaccination campaign on 19 December 2020, with Prime Minister Netanyahu getting the first vaccine.²⁴⁸ The vaccinations used were purchased from Pfizer based on a bilateral agreement signed on 6 January 2021. After some public criticism regarding Israel’s agreement to supply Pfizer with data regarding the effects of the vaccination on people, which raised privacy concerns, a redacted version of the agreement was made public.²⁴⁹ The agreement describes a joint project, the purpose of which is ‘[t]o measure and analyse epidemiological data arising from the Product rollout, to determine whether herd immunity is achieved’, and ‘to generate and analyse epidemiological and population-level vaccine effectiveness data’. Under the agreement, Israel will provide Pfizer with aggregate epidemiological data that cannot reasonably identify an individual, based on the standards set in Israel’s Privacy Protection Law and Patient Rights Law. The Israeli Helsinki Committee expressed concerns regarding this part of the agreement including the need for informed consent for participation in research based on the vaccines given to the Israeli population.²⁵⁰

109.  Israel has rolled out the largest per-capita vaccinations campaign worldwide.²⁵¹ By the end of March 2021, 56.41% of the population was fully vaccinated and 51.54% partially vaccinated.²⁵² The vaccines were rolled out based on age and risk groups, and, as of 4 February 2021, made available to anyone over the age of 16.²⁵³ While given the declarations made regarding infectious disease and emergency under the People’s Health Ordinance it is possible to mandate vaccinations (under Article 19 and Article 20(2)(b) of the PHO), vaccinations were not made mandatory and presumably any attempt to mandate them would be challenged legally based on Basic Law: Human Dignity and Liberty and the Patient’s Rights Law.

110.  However, the government has adopted a model known as the ‘green-pass’ into the regulations issued under the Corona Law. Under the green pass regime, a digital certificate is issued to those who have been vaccinated or have recovered from Covid19, granting them the ability to take part in leisure, sports, and cultural activities. Only holders of a green pass are permitted to work out in gyms, attend cultural events, stay in hotels, or sit inside restaurants. As children are not authorized to be vaccinated—the green pass is required for anyone above the age of one—their stay in hotels requires presenting a negative Covid-19 test taken within the previous 48 hours, an option which is also available for tourists. Entry into other green pass restricted venues is possible for people taking an immediate ad hoc Covid-19 test which proves negative, if the operator of the venue chooses to conduct such tests at the entry to the premises.²⁵⁴ At the moment, the green pass requirement has been implemented in a very limited number of public activities. Nonetheless, there are concerns that the policy will be dramatically broadened, de jura or de facto.

111.  Even though the regulation regarding the green pass does not apply to the labour market, the distinction between vaccinated and unvaccinated persons has been applied by employers in Israel. Disagreement between the Ministry of Health and the Ministry of Finance regarding whether to adopt labour market regulation has led to a vacuum, with employers using their prerogative to take measures, including restrictions on the entry of unvaccinated employees into work, with some even declaring that the employment of unvaccinated workers will be terminated.²⁵⁵ Several legal opinions were written on this matter, stressing employers’ responsibilities to protect the health and safety of their employees and of customers, students, and patients, particularly those who are more at risk—like children, the elderly, and persons with health problems—on the one hand, and the rights of unvaccinated persons on the other.²⁵⁶ Eighteen labour law professors from faculties within Israel stated the need to adopt a more nuanced approach that considers the specific circumstances of each case in order to adopt appropriate and reasonable measures.²⁵⁷ Following measures taken by some employers two judgements were given on this issue. The first was in a case where the applicant, an assistant in a kindergarten for children with special needs, refused to be vaccinated or to be tested on a regular basis (once a week) as required by the local council. The Regional Labour Court, in an interim decision, found that the local council has the authority and the obligation to make sure the children, their parents, and other teachers are not negatively affected by allowing unvaccinated workers into the kindergarten, thus violating their rights to health and life. In balancing the rights, the Court allowed the council to pursue its policy by requiring vaccination or a negative test every week.²⁵⁸ The second case involved a large supermarket chain, which, in accordance with the relevant trade union, required all employees to be vaccinated or to present a negative test every 72 hours. The applicant, a cashier who had suffered in the past from a severe allergic reaction refused this request and asked instead to be repositioned, to rely on a less intrusive test, or to work under the previous working restriction conditions of distancing. In this case, also an interim decision, the Court found that despite the employee’s rights to dignity, equality, freedom of occupation, and personal belief, the chain’s obligation to provide a safe and healthy environment for its employees and clients entails its authority to require vaccination. This reflects the employers’ prerogative and the importance of collective agreements. While the employer cannot enforce vaccination or the transfer of any medical record, it has the right to act against an employee who refuses to do so in justified situations. ²⁵⁹

112.  In a highly expedited legislative process,²⁶⁰ Israel permitted the Ministry of Health to disclose the identities and contact information of citizens not vaccinated for Covid-19. Upon request, the information could be shared with municipal authorities and the Ministries of Education and Labour in order to enable these bodies to encourage vaccination, without obtaining consent from the citizens whose information would be transferred. This temporary legislative amendment was soon challenged before Israel’s Supreme Court. While the Supreme Court had temporarily halted any implementation of this amendment, the issue awaits a decision.²⁶¹

113.  In addition to the controversy regarding privacy, two issues regarding vaccinations became the focus of legal debates. The first was the objection of the Minister of Internal Security to issuing vaccinations to prisoners. This objection stood in direct contrast to the policy of the Minister of Health, and the Attorney General opined that the Minister of Internal Security was acting ultra vires in attempting to block vaccination of prisoners. A petition to the HCJ on the matter became moot as the State’s response to the petition stated that prisoners are being vaccinated, with vaccination given to every interested prisoner. The HCJ emphasized that access to vaccination according to the Ministry of Health’s plan should not distinguish between prisoners and other citizens.²⁶²

114.  The second legal controversy is regarding the question of whether Israel has a legal duty to supply vaccinations to Palestinians living in the Occupied Palestinian Territories. To date, Israel has only been willing to vaccinate 120,000 Palestinians working in its territory and to allocate additional 2,000 vaccines to Palestinian health workers, a policy recently challenged before Israel’s Supreme Court.²⁶³ This dispute is part of a wider debate about the duties of Israel regarding Covid-19 towards the Palestinian population. The argument has been made by some legal scholars that, based on the specific duties regarding health and epidemics in the Fourth Geneva Convention, Israel has the obligation to provide health care for the Palestinian population.²⁶⁴ More specific arguments were made regarding the need to supply vaccinations,²⁶⁵ The debate on this issue is ongoing and brings up complex questions about the relationship between Israel and the Palestinian Authority which generally is responsible for health matters in the OPT, the extent of Israel’s duties regarding Gaza, which is considered part of the OPT but which Israel argues it no longer occupies, and other questions regarding the applications of international humanitarian law and human rights law that require a separate analysis.

115.  It has been reported that the Israel Institute for Biological Research, a governmental research institute, is working to develop a vaccine itself.²⁶⁶

116.  The GSS has been involved in the contact tracing of patients using technology for the purpose of assisting the Ministry of Health in epidemiological investigations. Following the HCJ’s judgment holding that, after the initial emergency period, the government can no longer authorize the GSS for this purpose under the general GSS law,²⁶⁷ a statute authorizing the government to allow the GSS to use technology for contact tracing Israeli citizens was legislated on 1 July 2020.²⁶⁸ On that basis, the government declared that it gives such authority to the GSS on 12 August 2020 and has since then extended this declaration regularly until the time of writing. The maximum period for each authorization act is 21 days.²⁶⁹ Epidemiological investigations were initially conducted by the Ministry of Health, and later transferred to the military (see Part IV.B.1 below). On 1 March 2021, the HCJ limited the use of use of security surveillance technology.²⁷⁰ While the Court did not invalidate the law authorizing the government to employ such technology, it did criticize the manner in which the government exercised its discretion,²⁷¹ limiting the use of the technology to individuals who refuse to cooperate with epidemiological investigations.

117.  A national program was published in April 2020 for the protection of elderly in residential care. The program includes detailed instructions on the operations of institutions where elderly people are under care, requiring the institutions to act based on strict provisions concerning protection, family visits, isolation, and treatment.²⁷²

118.  As discussed in Part II.C above, orders were issued under the People’s Health Ordinance mandating home confinement, limiting public gatherings, and eventually imposing general social distancing and mask-wearing obligations.²⁷³ Lacking an effective enforcement apparatus under the PHO, compliance with these orders was based, during these initial weeks, on cooperation by individuals and self-regulation by organizations.

119.  Since mid-March 2020, the government added a host of ER to curb the spread of the virus. These included, first, defining violations of the Public Health Ordinances—which kept being updated regularly to add new restrictions—as both criminal offenses and civil infractions.²⁷⁴ Secondly, the government enacted a much broader set of prohibitions as described in Part IV.A above, and imposed criminal and civil liability on violators.

120.  Violations were punishable by imprisonment of up to six months or a criminal fine of up to about USD $4,300.²⁷⁵ The primary mode of sanctioning however was through civil fines of smaller, yet significant, amounts for many of the infractions (eg breach of home isolation or quarantine, failure to wear a mask, operating an unauthorized business, and failure to disperse a gathering), ranging from about USD $150 to USD $1,500. The State Attorney’s policy instructed the use of civil fines as the general rule, limiting criminal prosecution only to severe or repeated violations or for obstructing enforcement efforts.²⁷⁶ The various restrictions and sanctions were later transitioned from ER to primary legislation, without significant changes to their content.²⁷⁷ Only at the peak of the ‘third wave’ of infections, in January 2021, with levels of morbidity and mortality reaching new highs and in the face of ongoing violations in certain communities were civil fines against businesses, institutions, and organizers of large gatherings doubled to about USD $3,000.²⁷⁸

121.  Government regulations explicitly authorized police officers to enforce the restrictions, handing them extensive powers to ascertain identity of individuals, prevent access to locations, disperse gatherings, force the closure of businesses, and detain violators who fail to comply.²⁷⁹ Further, when local lockdowns were imposed on specific towns or neighbourhoods, armed police operated the barricades, keeping residents in and blocking outsiders from entering.²⁸⁰ As the enforcement stress intensified, the Government extended the authorization to enforce some of the limitations to local government inspectors and park rangers.²⁸¹

122.  Once it was called upon to enforce the Covid-19 restrictions, the police became a central player in the country’s general reaction to the crisis. The centrality of the police in both disseminating and enforcing the various rules and restrictions reflected the lack of a state-wide regulatory and enforcement apparatus within the Health Ministry, which was formally charged with managing the crisis. While four non-profit Sick Funds (which serve as Israel’s HMOs) do normally operate a broad infrastructure of community-level health provision and monitoring, they were side-lined by the central government during the pandemic’s ‘first wave’,²⁸² compelling it to rely primarily on the police in these early stages.²⁸³

123.  Most of this work was done by rank-and-file police officers, patrolling public areas state-wide and exercising individual discretion in the face of myriad violations. The result was a significant disparity in the frequency of fines imposed in different areas throughout the country, as well as on the kinds of behaviours targeted for enforcement in different communities. Violating lockdown orders and failing to wear a mask were the two most common reasons for fines. By mid-January 2021, amidst the peak of a third wave of infections and a third, intensely-enforced, lockdown, over 550,000 fines were given (in a population of some 9 million residents).²⁸⁴ Only a minority of fines are however paid in full and on time, with an average of 50% payment for the first four months of enforcement (fines whose deadline for payment have expired).²⁸⁵

124.  Police enforcement efforts faced several unique challenges. First, the Covid-19 era arrived at a time of extreme political instability. A divided cabinet was thus unable to appoint a Chief of Police, leaving the organization to handle the crisis with an impaired chain of command, likely empowering local commanders. Further, the period was marked by widespread political demonstrations, requiring police to maintain a fraught balance between its obligation to defend freedom of anti-governmental political speech and its role in enforcing government-promulgated limitations on public gatherings (see Part IV.A.3 above). Second, two communities where infection rates were high in Israel and thus required disproportionate enforcement measures—ultra-orthodox Jews and Israeli-Palestinians—are historically antagonistic to police involvement in their communal lives, which includes a strong attachment to practices held in large gatherings (eg weddings, prayers, Torah studies, etc). Enforcement thus had to manage a general suspicion towards police presence. At least in the ultra-orthodox context, informal chains of interaction between police commanders and community leaders evolved, sometimes leading to unique compromises allowing certain communal practices to continue notwithstanding general restrictions.²⁸⁶ The third wave of Covid-19 infections in January 2021, and ensuing third national lockdown, were similarly met with disparate levels of enforcement among general and ultra-orthodox communities, with the latter leading infection rates while facing significantly fewer fines.²⁸⁷ This again exemplified the challenges of enforcement upon a religious, reclusive, populous, and tightly-knit community; while it may also have to do with the political instability and the governing coalition’s reliance on the support of ultra-orthodox voters.

125.  Ever since the earliest stages of the Covid-19 pandemic, Israel’s armed forces (the IDF) have been extensively involved in the country’s response to the Coronavirus. Much of the military assistance was provided or coordinated by the Home Front Command, the IDF unit that specializes in civilian protection, usually at times of armed conflict.²⁸⁸ Since this unit regularly conducts exercises in coordinating with and supporting local and national authorities at times of security crisis, it was only natural that these same authorities would turn to it for assistance during the health crisis.

1. a.  IDF involvement in the response to the pandemic has included: ²⁸⁹

   1. i.  Providing logistical support to civilian authorities in supplying aid to the civilian population, such as food and essential services to the elderly, and transporting persons infected by the Coronavirus to secluded locations.

   2. ii.  Operating civilian systems: as the pandemic developed in Israel, it became apparent that some civilian authorities were ill-equipped to cope with the health situation. Troops serving in the IDF's Intelligence Branch and Home Front Command developed sophisticated computer capabilities for gathering information on the spread of the virus. In July 2020, when it became apparent that the Ministry of Health was unable to operate an effective system of epidemiological investigations, the Home Front Command was charged with the task.²⁹⁰ The IDF was also given the responsibility to operate hotels and hostels where recovering Covid-19 patients who did not require medical support were housed.

   3. iii.  Information and Publicity: the Home Front Command operated an information centre which provided information through the internet and telephone on specific government instructions.

   4. iv.  Assistance to police forces: on 30 March 2020 the government ordered the IDF to assign 700 soldiers, and up to a further 700 soldiers if required, to assist the police in ‘tasks of presence and prominence in the public areas’ related to enforcing the lockdown and other Covid19 related missions. The decision further stated that troops would not be authorized to enforce the regulations on civilians—for instance by making arrests or handing out administrative fines, an authority that would remain solely with the police.²⁹¹ In practice, soldiers were seen manning roadblocks and directing traffic surrounding political demonstrations against the government. After a strong public response, this practice was apparently abandoned.²⁹²

2. b.  The vast resources at the disposal of the IDF, its expertise in dealing with crisis situations, and the public trust it enjoys, have led some politicians to call for even more military involvement in Israel’s response to the pandemic.²⁹³ A few have even suggested, and the public seemed to support,²⁹⁴ that the coordination of response be transferred from the health authorities to the IDF.²⁹⁵ Conversely, both senior IDF officers and researchers in think tanks have called for severe limits to be placed on military involvement.²⁹⁶ One reason is that a transfer of resources to Covid-19-related missions would necessarily divert the IDF from its primary responsibilities of national security. It was also claimed that IDF involvement in the response to a civilian crisis might politicize the IDF, especially as the government's response to the pandemic is a highly politicized and divisive issue in Israel.²⁹⁷ Furthermore, there are those who fear that excessive use of IDF resources could be used to justify measures designed to deplete and undermine those of the civilian authorities responsible for dealing with health crises.²⁹⁸

3. c.  For the present, it seems that the military role in Israel’s response to the Covid-19 pandemic will not be extended beyond its current boundaries. Should the pandemic become more severe in the near future, it is hard to predict which further roles might be allocated to the IDF.

126.  Due to the large amount and significant diversity of rules and restrictions imposed over the course of the pandemic, as well as the continuous ebbs and flows in the rules’ coverage and in the intensity of their enforcement, it is difficult to report on overall levels of compliance. Several insights however can be drawn:

1. a.  Personal compliance during the first wave of restrictions, in March–April 2020, was reported to be relatively high, with a significant diminishment in levels of mobility and gatherings. In an initial survey, compliance was reportedly driven mostly by moral, personal, and capacity-based motivations, with legal deterrence playing a less pronounced role.²⁹⁹ In another study, levels of trust in government were also shown to have little relation to the relatively high degrees of compliance with individual obligations in the early months of the pandemic.³⁰⁰ As time goes by, however, evidence of a gradual erosion in levels of individual compliance is accumulating, specifically with regard to the most onerous obligations, namely confinement at home upon return from abroad or following the tracing of contact with a confirmed Covid-19-carrier.³⁰¹

2. b.  The large number of fines imposed on violators over the course of the nearly yearlong pandemic indicates that pedestrian violations were rampant. However, these were often associated with individual infractions, the relation of which to actual risks of infection are disputed (eg failure to wear a mask in the outdoors—a restriction not imposed in many other jurisdictions). In addition, during the first wave of infections and restrictions (March–May 2020), a clear and immediate correlation existed between the amounts of fines imposed and the daily reported death toll,³⁰² indicating that enforcement intensity may have been driven not necessarily by levels of compliance, but rather by perceptions of risk.

3. c.  As noted above, the most conspicuous cases of systemic non-compliance throughout the period took place among ultra-orthodox communities, many of whose rabbinical leaders insisted that Yeshivot—boys’ religious schools—maintain operation regardless of Covid-19-related restrictions. These communities are also some of Israel’s poorest, with the highest birth rates and living in crowded neighbourhoods and cramped apartments. The rates of infection, morbidity, and death in these communities was continually disproportionately high.³⁰³ The police’s reluctance to exercise effective enforcement measures against institutional violations among ultra-orthodox communities, in addition to its fluctuating policies toward political demonstrations, is likely to have eroded the public’s general willingness to fully comply with ongoing restrictions.

4. d.  Recurrent high-profile events, in which political leaders (including the President, the Prime Minister, and the Minister of Health) and popular celebrities violated various restrictions with impunity,³⁰⁴ adversely affected an ongoing effort by public health officials to encourage the Israeli public to comply with the rules out of a sense of solidarity and common cause.

127.  The Covid-19 crisis has led to the worst unemployment crisis Israel has known in decades,³⁰⁵ with up to over one million workers (about 27% of the Israeli workforce) going on unpaid leave or being dismissed from their jobs in April 2020, and hundreds of thousands of self-employed workers whose businesses closed or suffered a drastic drop in income.³⁰⁶

128.  Social protection has been a central component in the efforts to address the economic and social impact of the Covid-19 pandemic in Israel. While other countries, such as France, focused on channelling support to employers, Israeli policy has emphasized cash transfers through the social safety net system of unemployment insurance including significant measures to increase the coverage and extend the duration of these benefits, instances of basic income grants for families with children, the elderly, and other vulnerable groups, and creation of new ad hoc grants for those self-employed workers hurt by the crisis. After several decades of moving towards a neoliberal, means-tested, and market-oriented model of social protection, Israel leaned back to its roots as a universal Beveridgean model.³⁰⁷ Yet, these measures are, by and large, temporary and do not necessarily signal a change in the long-term development of the Israeli welfare state.

129.  Based on an agreement between the Government and the Israeli National Insurance Institute,³⁰⁸ a one-time grant was given on April 2020 to those who were entitled to certain benefits.³⁰⁹ As part of the grant, NIS 500 was paid for each child in the family up to the fourth child, and for each senior citizen (women from the age of 62 and men from the age of 67). A supplement of NIS 450 was paid to senior citizens who also receive at least one of the following benefits: income supplement, nursing benefit, and special services benefit. A grant of NIS 500 was paid to the recipients of income support and recipients of a state-funded alimony-replacement.

130.  In August 2020, an additional one-time grant (‘grant for each citizen’) of NIS 750 was paid to Israeli residents over the age of 18, excluding high earners.³¹⁰ A double grant of NIS 1,500 was paid to those eligible for certain benefits. In addition, child benefit recipients received a grant of NIS 500 for each of the first four children, and a grant of NIS 300 (per child) from the fifth child and up.

131.  According to the National Insurance Institute, while the monthly average of Unemployment Insurance (UI) benefits applications was 16,000 prior to the Covid-19 crisis, the number of applications rose to 784,000 on March 2020 and 123,000 on April 2020. Overall, between March and September 2020 the number of applications was 1,041,333, and 932,162 were approved (92%).³¹¹

132.  A series of steps were introduced to increase the coverage, level, and duration of UI benefits:³¹²

• •  Starting on 1 March 2020, the qualifying period for UI benefits was shortened from a minimum of 12 months of work to a minimum of six months of work prior to unemployment, although eligibility was set for half the normal entitlement.

• •  An advance was paid at the expense of the UI benefit in the amount of NIS 2,000 (about EUR 500) shortly after people claimed UI.

• •  Applicants for unemployment benefits were exempted from the requirement to physically register with the employment service, and registration shifted to an online platform.

• •  The duration for UI was extended for those who had reached their maximum number of days of UI eligibility. The extension was made in several stages and currently ends on 30 June 2021. Interestingly, the law added a restriction: if the Israeli Central Bureau of Statistics announces that the monthly unemployment rate falls below 7.5%, the extension period will end 30 days after the date of publication (see Part IV.B below).

• •  In order to address the growing number of young employees laid-off, the usually reduced wage replacement rate for young people under 28 was made equal to the regular level of UI for people under 28 with children.

• •  The law was amended to allow for claiming UI benefits in addition to other benefits, such as income support, senior citizen’s allowance, and survivors’ benefits.

133.  Since entitlement to UI benefits ends with retirement age, a special grant for the elderly unemployed has been set for those aged 67 and over who were dismissed or went on unpaid leave after 1 March 2020. The grant ranges from NIS 1,000–4,000 (EUR 250–1,000), depending on income.³¹³

134.  Self-employed workers are not entitled to UI benefits from the National Insurance Institute. Special regulations by the Ministry of Finance created an ad hoc UI-mimicking program for self-employed workers and business owners whose incomes were affected as a result of the crisis, to apply for a special grant (currently up to NIS 7,500 per month, depending on previous income).³¹⁴

135.  Negative income tax, called in Israel ‘work grant’, has been expanded.³¹⁵ An employee who was entitled to a negative income tax for one of the months from April to December 2020 received a supplement of 62% of the grant amount that month, for each month for which he was eligible, under certain conditions.

136.  On 17 March 2020, the Water Authority had published a directive to allow the postponements of water bills collection to the following billing date, and to allow a payment layout of up to 12 months with minimal interest, both available upon request of businesses.³¹⁶

137.  With the outbreak of the Covid-19 pandemic, Israel was not equipped with policies to address the economic and social consequences of the crisis and, during most of the first year, health restrictions set the tone of labour market regulation. Moreover, given that for several decades Israel had no structured employment policy—striking in comparison to some Organisation for Economic Co-operation and Development (OECD) countries³¹⁷—Israel did not develop one throughout the pandemic, and rather provided the labour market with relief via welfare provisions and business-economic support. The Ministry of Finance, together with the Ministry of Health, were the ones leading the policy, given the decreased power of the Ministry of Welfare and Labour in regulating the labour market in the past 20 years. In some instances, particularly in the public sector, this was done by conducting social dialogue with the General Histadrut—the main trade union in Israel.

138.  There have been three lockdowns in Israel (see Part IV.A above). During the first lockdown that started on 25 March 2020, all workplaces were instructed to limit the number of workers present at the workplace to ten workers or 30%, whichever was higher. This enabled employers to continue employment with very few working in the workplace itself, while others worked from home.³¹⁸ The ‘70-30’ rule was later amended to a ‘85-15’ rule (only 15% allowed at the workplace), with a number of exceptions for essential services in both the public and the private sector (eg, security services and supermarkets, respectively).³¹⁹ Numerous workplaces were shut down, resulting in a massive displacement of workers. Within a short time, unemployment rates surged from a record low in early 2020 (approximately 3.5%) to a record high by late March 2020 (approximately 25%).³²⁰ Importantly, unemployment rates are measured by the number of employees who register for unemployment insurance, therefore providing an underestimate of the employment crisis, because they do not include independent (self-standing) workers, freelancers, and other forms of workers who are not classified as ‘employees’ and, according to Israeli law, are disqualified from unemployment insurance. At the end of the first lockdown on 5 May 2020, and more intensively throughout May 2020, the Government eased the restrictions, establishing what was known as the purple badge.³²¹ Shops, culture and leisure facilities, and body treatment establishments gradually opened, as did event halls and ballrooms. First, those selling telecommunication equipment, audio and video, computers, electricity, furniture, textile, sports, books, etc (from 19 April 2020), then sport centres, zoos, body treatment facilities, parks, and others (5 May 2020), museums (19 May 2020), and event halls and ballrooms (26 May 2020 and 14 June 2020). Unemployment rates dropped to 21%. This policy continued until the second lockdown began on 17 September 2020.

139.  During the second and third lockdowns, imposed on 17 September 2020 and 27 December 2020 respectively, restrictions placed on the labour market changed in comparison to the first lockdown, imposed on 25 March 2020, with the major one being the designation of specific sectors and establishments as essential, enabling only workers within these sectors and establishments to physically come to work. These included undertakings for essential services, building and construction, Government offices, municipalities, religious councils, higher education institutions, some technological industries, and all other sectors mentioned in the second addition to the Regulation of Special Authorities to Deal with the New Covid-19.³²² The third lockdown that started on 27 December 2020 offered a very similar list of essential sectors and establishments.³²³ In December 2020, the unemployment rate stood at 16.7 %.³²⁴

140.  At the end of July 2020, Israel offered subsidies to businesses, depending on their income and on a decrease of income per business cycle.³²⁵ It also offered small grants to employers who hired back workers that were dismissed or sent on unpaid leave, and grants for those who provided employment security throughout the pandemic. Loans for businesses were also given from May 2020 onwards, as well as reductions in municipal rates for three months,³²⁶ relief in payments of water bills, reduction of payments to social security, and unemployment benefits for employers that could be drawn from their pension plans with options for tax deductions.³²⁷

141.  Most of these measures were set under the Economic Aid Program Bill or regulated by the administration using its authority under prevailing laws, such as the decision of the Water Authority to reduce water bills (see Part V.A.2 above).³²⁸

142.  Despite pressures from employers to forgo some employment standards during the crisis, notably the duty to provide due process hearings before dismissals, the State adopted policies that aimed to ensure, as much as possible, employment continuation. It adopted a policy that enabled employers to send their employees on unpaid leave, while qualifying for unemployment insurance if the other conditions required in law, some of which were relaxed, were met.³²⁹ The employment contract was suspended during this time, halting the continuity of acquiring employment rights based on periods of uninterrupted work, but still preserving employment security. Importantly, Israel’s unemployment insurance is rather slim in comparison to OECD standards.³³⁰ Criticism of Israel’s lack of an employment policy that encouraged the continuation of work instead of unpaid leave has led to the establishment of an intergovernmental committee with members from all relevant ministries.³³¹ In November 2020, a report recommending the allocation of further subsidies to employers that provided job security, alongside policies to strengthen the position of disadvantaged workers who suffered the most from the pandemic (on the disadvantaged position of women, migrant workers, persons with disabilities, and the Arab minority within the labour market during the pandemic, see Part VI below) and support the low-waged workers was issued, but was never adopted by the Government.

143.  Collective agreements signed in the public sector ensured employment security even when workers were on leave (see Part V.B.6 below), and generally sectors that were unionized experienced better employment security than others.³³² Social partners were rather active during 2020, with 458 collective agreements signed at that year, in comparison to 385 in 2019.³³³

144.  There were wage cuts within the private sector altering contractual conditions. According to a study by the National Social Security, 42.3% of employees suffered from wage cuts, at an average of 11%, with most deductions affecting young employees, employees in small businesses, Haredi (ie ultra-orthodox Jews), and Arab employees.³³⁴

145.  Independent workers, freelancers, and other categories of non-employees remained excluded from unemployment insurance, and from April 2020 onwards received grants if they earned NIS 2,000–240,000 during 2019 and their business activity decreased by more than 25% during the pandemic.³³⁵ These grants were of lesser value than unemployment insurance, and taxable.³³⁶ Self-employed workers who closed their business could draw money from their provident fund and pensions. From 26 August 2020, the National Security Decree provided unemployment insurance to several groups of self-employed workers, including travel guides and technical and artistic staff of a musical or drama production.³³⁷ A survey conducted in December 2020 regarding the self-employed indicated that 74% of them worked at that time, but only 24% of them at similar rates as before, with 45% reporting partial work and income.³³⁸

146.  No special protections were given to workers with particular needs, except for workers with disabilities who were exempt from wearing a mask when their health situation required it (see Part VI.E below). On the contrary, there was an attempt to relax the required approval from a governmental official to terminate women’s employment or put them on unpaid leave during pregnancy or birth-related circumstances.³³⁹ After a petition was submitted to the Supreme Court on this matter,³⁴⁰ the State gave up the relaxation of the required approval. Notwithstanding, the number of pregnant employees who were sent on unpaid leave during the pandemic was exponentially higher than those whose job was terminated in previous years.³⁴¹

147.  Legislating a policy that incentivised flexible and part-time work in Israel was rejected outright by the Ministry of Finance, despite various proposals that were made to that extent.

148.  Throughout the pandemic, health and safety regulations set the tone for the labour market, including limiting the number of employees that can stay at the workplace, and requiring workers to wear masks. During the period from May to September 2020, the period of the purple badge, workers had to declare, before entering the workplace, that they had no fever or any other symptoms,³⁴² and were required to wear a mask and keep a two-metre distance from each other, a requirement that entailed limitations on the number of workers that could be at the same time at work. When this was impossible, employers had to provide other safety measures. They also needed to provide each worker with their own equipment, and make every effort to place the same workers in recurring shifts, therefore creating bubbles.

149.  An administrative order by the Ministry of Health implemented a policy categorising employees who were sent to quarantine or isolation as being on sick leave who receive payment according to the Sick-Pay Act.³⁴³ However, this policy was struck down by the Supreme Court who decided that a person in quarantine or isolation could not be considered sick for the purpose of the Act.³⁴⁴ Following the verdict, a new policy was adopted, according to which employers whose employees were sent to quarantine or isolation and reported it to the Ministry of Health received a special ‘quarantine grant’, equal to payments made by the Sick-Pay Act. This grant started from the second day of the quarantine and payment was made up until a maximum of four days.³⁴⁵ Employees continued to receive full coverage of their salaries during their stay in quarantine or isolation.

150.  Retraining and educational programs provided by the State continued to apply during the crisis and shifted to distance learning. One of these programs is based on the provision of vouchers, where people can choose their preferred training. To date, there is no data on people’s preferences during the crisis. A new agency to promote professional training in the fields of construction, infrastructure, hi-tech, and industry was set up,³⁴⁶ but is still not active.³⁴⁷

151.  Several collective agreements were signed in the private and the public sector, with important social dialogue in the latter. During the first lockdown, several collective agreements were signed by the General Histadrut with public employers, including the State and local municipalities, according to which the wages of employees whose work ceased during lockdowns were to be paid by drawing on their accrued vacation days, and if necessary, on future vacation days, or paid by the employer.³⁴⁸ Collective agreements were signed on the 18 March 2020,³⁴⁹ 13 April 2020,³⁵⁰ 17 April 2020,³⁵¹ and 30 April 2020.³⁵² These created an asymmetry between public and private employees, with the former having more job security and income, ie on a similar level to what they received before the crisis. Labour regulations for public employees during the period of the purple badge were also settled via collective agreements. These required employers to provide lists of employees who would return to work, also giving them the opportunity to employ some employees part-time, and change the lists every period of time, as set within the agreements.³⁵³ A similar and even more flexible approach was adopted in collective agreements for public sector employees during the second lockdown, stressing the importance of employing as many workers as possible, even if the latter worked from home, while enabling part-time hiring, the mobilization of workers, and retraining opportunities.³⁵⁴

152.  An emergency regulation relaxed the duty to give workers at least two weeks’ notice before an employer initiates an organized paid leave for its employees, as set in the Annual Vacation Law.³⁵⁵

153.  In an attempt to contain the pandemic, the Israeli Government issued an array of measures restricting gatherings and movement, imposing isolation and quarantine requirements, and limiting entry to and exit from Israel (see Part IV.A above). These measures were implemented with various degrees of strictness throughout the pandemic, initially through emergency regulations and orders issued under the Public Health Ordinance and, later on, through the Corona Law (see Part II.C above). The High Court of Justice (HCJ) rejected petitions regarding most of these measures early on, including ‘lockdowns’ and the imposition of cordons sanitaires, taking a deferential approach and using a proportionality analysis (as discussed in detail in Parts III.C, IV, and IV.A.1) that gave preference to the protection of health and life over the restricted rights.

154.  Later on, with regards to two major issues flagged as particularly important for civil liberties, the HCJ did intervene, holding that the measures failed to meet the proportionality requirement of not being able to achieve the same legislative purpose with less restrictive measures. These issues included limitations on demonstrations³⁵⁶ (as part of the limitations on gatherings discussed in Part IV.A.3 above)³⁵⁷ and restrictions on Israeli citizens entering and exiting the country (as discussed in Part IV.A.2).³⁵⁸

155.  Another major human rights issue was the question of the legitimate distinction between vaccinated and non-vaccinated individuals and the legality of the ‘green pass’ regime, which Israel enacted in the course of the vaccination campaign (see Part IV.A).³⁵⁹ The ‘green pass’ regime raised the issue of whether and which distinctions between vaccinated and non-vaccinated individuals were constitutional. The first green pass regime was revoked on 1 June 2021, due to a decline in the number of infections in Israel that correlated to the high percentage of vaccination of the population³⁶⁰ However, during the fourth wave of cases associated with the Delta variant, Israel reintroduced and broadened the green pass regime in August 2021. In its second version, the green pass was expanded beyond attending cultural, leisure, or sporting events, to also include access to work in certain sectors as well as access to in-person attendance of higher education.³⁶¹ On 14 September 2021, the HCJ rejected a petition against the legality of the green pass, holding that it did not violate the right to equality between people who are vaccinated (or recovered from Covid-19) and those who are not. The HCJ took into account the information submitted to it about gaps between transmission and sickness between the different populations, and the fact that an alternative option of testing for Covid-19 existed for those not holding the green pass.³⁶²

156.  From the beginning of the pandemic, the Israeli Government realized that data was an important tool to manage the situation. Given that the Public Health Ordinance 1940 requires a person with an infectious disease to inform the Ministry of Health (MoH) of their situation,³⁶³ and that the Israeli health system is public and universal, making information on health more accessible, the MoH is in possession of detailed information about all individuals who have tested positive for Covid-19. Pressure to share this data with municipalities, law enforcement agencies, etc, was blocked.³⁶⁴

157.  The most extreme measures concerned contact tracing. Two parallel routes operated. First, the MoH developed an app, HaMagen (‘Shield’), applying a privacy by design approach. HaMagen was a voluntary, open source, based on matching location data. However, HaMagen was not accurate enough, and by the time the MoH switched to a proximity-based app, it had failed to gain public acceptance. Second, and controversially, during March 2020, an emergency regulation ordered the General Security Service (GSS) to use its technological capabilities of bulk, mass surveillance, for the purpose of contact tracing.³⁶⁵ The tool, learned from its name (shield), uses communication data provided by telecommunication service providers. However, the technological details and exact legal framework remain secret. The Telecommunication Act contains some authorization to the government to order service providers to assist security agencies, and the General Security Service Act authorizes the GSS to receive data.³⁶⁶

158.  Some measures were taken to minimize the violation of privacy, such as limiting the number of people who may have access to the data, and limiting the use of the data solely to contact tracing. In Ben-Meir v Prime Minister,³⁶⁷ the Supreme Court found that the order was narrowly within the authority of the GSS, but insisted primary legislation be enacted (see also Parts III and VI). A law followed for a temporary period of three weeks first,³⁶⁸ as well as an amended law for six months that was scheduled to expire in January 2021.³⁶⁹ Due to the political crisis, the latter was automatically extended.³⁷⁰ The Supreme Court found the law to be constitutional, but that the Government had failed to formulate clear criteria for its operation. Accordingly, the Court limited the use to cases in which diagnosed people refuse to cooperate with epidemiological inquiries.³⁷¹ In November 2021, the Government issued emergency orders authorizing the use of the GSS contact tracing capabilities in light of the first cases of the Omicron variant. The authorization was for five days. By the fifth day, the Supreme Court approved the emergency measures,³⁷² which then expired and were not renewed.

159.  Following the first lockdown (between 25 March and 4 May 2020), the rate of unemployment in Israel increased to over 20% in April 2020 and became significantly gendered: the proportion of women going on unpaid leave (for further details, see Part V above) or losing their job was 7.7% higher than men.³⁷³ This was the result of industries that employ mostly women shutting down, such as tourism, cleaning, or sales.³⁷⁴ Even in male-dominated industries, like computer services or electricity, more women lost their jobs compared to men.³⁷⁵ The second lockdown (between 17 September and 17 October 2020) had gendered implications as well, with 62.4% of those registered as seeking employment in September 2020 being women.³⁷⁶

160.  Protections for pregnant women were eased, with the passing of emergency legislation in March 2020 that abolished a requirement set in the Employment of Women Act to receive permission from the relevant ministry before dismissing or sending on unpaid leave pregnant workers, workers who had just given birth, or workers undergoing fertility treatments.³⁷⁷ This legislation was cancelled³⁷⁸ only after a petition was submitted to the HCJ.³⁷⁹ Still, data shows a dramatic increase in requests for permission to send pregnant women on unpaid leave during the first lockdown, with more than 7,800 requests submitted between March and April 2020 in comparison to 1,600 requests per year in 2018 and 2019.³⁸⁰ Similar increases were found in subsequent months.³⁸¹

161.  Women were also exposed to higher risks of infection throughout the pandemic, since they represent the majority of workers in sectors such as nursing (87%), social work (90%), and paramedics (89%), as well as the majority of cleaners (74%) and supermarket cashiers (83%). With regards to the division of labour at home, women performed almost two-thirds of the housework (61%) and childcare (64%), even when both parents worked from home.³⁸² When working part-time or earning less than their male spouses, the disparity was even bigger.³⁸³

162.  Since the beginning of the pandemic, the number of reported cases of domestic violence increased significantly. In May 2020, 1,885 complaints for domestic violence were filed,³⁸⁴ and there was a 16% rise in the number of investigations opened by the police, compared to 2019. The number of women requesting help from hotlines increased dramatically as well.³⁸⁵

163.  Arab-Palestinian citizens constitute almost 20% of the total population in the State of Israel. From the outset, coping with the pandemic involved the army and other security mechanisms that did not contribute to civil trust. Even though the Government appointed a Covid-19 Supervisor in the Arab community, this did not solve the problem of alienation. For instance, the authorities did not provide sufficient information regarding the morbidity status in Arab towns,³⁸⁶ and the policy adopted by the police in enforcing Covid-19 fines appeared to be selective and discriminatory, considering their much higher percentages of enforcement in Arab towns.³⁸⁷

164.  From the outset, the information provided by the authorities in Arabic was scarce. Only after several inquiries and legal petitions filed by human rights organizations did some ministries begin to publish more information in Arabic, although a gap still remains between provision of Hebrew and Arabic language information.³⁸⁸

165.  There were also gaps between the provision of health services to Arab and non-Arab towns. At the beginning of the pandemic, claims were raised regarding the provision of health services in Arab towns, including delays in providing services by MDA (Magen David Adom serves as the Israeli Red Cross organization), as well as the lack of access to testing centres and testing drive-ins.³⁸⁹ The situation improved throughout the crisis, yet gaps still exist in critical areas, ie the small number of MDA stations in Arab towns and the limited number of hospital beds for the population in the peripheral areas of Israel. Moreover, a significant part of health services had to be provided by local authorities when Arab local authorities, in a state of deficit, already struggled to provide such services.³⁹⁰ For instance, in the absence of proper infrastructure for electricity and internet, many Arab students were prevented from distance learning.³⁹¹ Undoubtedly, the aforementioned gaps are the result of ongoing historical discrimination. Therefore, the pandemic’s consequences on the Arab population were much more severe.

166.  Covid-19-related information was mainly inaccessible to persons with disabilities (PWD), especially in Arabic,³⁹² and instructions regarding social distancing requirements, that were provided through the media, were not accommodated as well. A high percentage of PWD were sent on unpaid leave,³⁹³ up to four times more than persons without disabilities,³⁹⁴ and remote working was not fully accommodated (see Parts V.A.2 and V.B.2 above).³⁹⁵ Remote learning was not adequately accommodated for students with various disabilities, particularly cognitive and visual or related to hearing.³⁹⁶ Although generally, special and inclusive education was provided in-person during lockdowns, not all additional services—such as physical therapy—were provided, and integrated school students with disabilities reported facing difficulties adjusting to distance learning.³⁹⁷ During February 2021, new regulations regarding accessibility for PWD during emergency times were published. The regulations do not refer to the Covid-19 virus directly but include provisions regarding diverse education services that would be provided during emergency times, either at home or using technology.³⁹⁸

167.  Obligations to use face masks posed difficulties for persons with mental and hearing disabilities, and on 27 April 2020, people with mental and intellectual disabilities were exempted from this duty.³⁹⁹

168.  Throughout the pandemic, there was failure to provide accessible digital services.⁴⁰⁰ A decrease in the provision of services was also evident, such as mental health support, supported employment, rehabilitation, recreational services,⁴⁰¹ and special education services such as the reduction of school hours.⁴⁰² Psychiatric hospitals reported an increase in admissions during the pandemic.⁴⁰³

169.  Especially during the beginning of the first lockdown (starting on 29 March 2020), disproportionate measures were taken in order to protect PWD in residential institutions and psychiatric hospitals, including prohibitions on leaving the institution and limitations on visitors.⁴⁰⁴ Discrimination in situations of scarce medical resources was also evident during April and May 2020 because of official suggestions basing assessment for the provision of life-saving medical care on physical functioning.⁴⁰⁵ Those suggestions were rejected by the Health Ministry in September 2020, after PWD, NGOs, legal clinics, and the Commission for Equal Rights for PWD challenged to the Ministry of Health on this issue.⁴⁰⁶

170.  Compared to other OECD countries, and despite its relatively high life expectancy, Israel is considered a ‘young’ country, with around 12% of its population over the age of 65.⁴⁰⁷ In general, the legal framework regarding the rights of older persons in Israel is characterized by ministerial and legislative fragmentation and the lack of a single, comprehensive human rights law instrument in this regard.⁴⁰⁸ During the Covid-19 crisis, this legal reality was observed in various ways:

• •  Legality of age-based rationing of scarce medical resources: Israel enjoys a universal health care system under its National Health Insurance Law of 1994. All Israelis are insured, and discrimination based on age is illegal.⁴⁰⁹ However, at the very early stages of the Covid-19 pandemic, voices were raised about the need to exclude older patients from ventilators in case of shortage. In response, NGOs and professionals pointed to the illegality of such a discrimination⁴¹⁰ and the Ministry of Health announced that, in case of shortage, age would not be a criterion.⁴¹¹

• •  The closure of geriatric and internal medicine units in favour of Covid-19 units: in the early stages of the pandemic, Israel struggled with the urgent need to establish new hospital units to provide care for Covid-19 patients. One of the solutions adopted was to transform existing geriatric and internal medicine units into Covid-19 units, while moving the geriatric patients to external nursing homes. This move was challenged in courts by family members and legal clinics representing the older patients. However, these petitions were all rejected by the Israeli courts under the general legal policy not to intervene with the Government’s actions and discretion in times of emergency.⁴¹²

• •  Restrictions on movement and visitation for residential care facilities and nursing homes: the legal regulation of assisted living facilities, homes for the elderly, nursing homes, and other residential care settings is very fragmented and complicated under Israeli law. During the first months of the pandemic, the Ministry of Health and the Ministry of Welfare issued many different guidelines to these residential settings regarding restrictions, social isolation and distancing of staff, residents, and family members.⁴¹³ Some residential care facilities issued their own internal policies, mandating even harsher restrictions on their staff and residents. Once again, all legal attempts to challenge these guidelines and policies were rejected by courts.⁴¹⁴ It was only after a new integrative body was established (around April 2020), known as ‘Fathers & Mothers’ Shield’ (also mentioned in Part IV.A.10 above) that a coherent and coordinated policy was established in this field.

• •  Age-based discrimination in labour force participation: once the closures and lockdown ended, and with the gradual opening of workplaces, the Government issued new regulations limiting the return of workers over the age of 67 (retirement age) to work.⁴¹⁵ This age-based limitation was legally challenged in a petition to the Supreme Court by a coalition of elder-rights organizations. A day after the submission of the petition, the regulation was changed and the age-based restriction abolished.⁴¹⁶

• •  Unemployment benefits for older workers: under Israeli law, workers above retirement age are not entitled to unemployment benefits. As a result, many older workers who lost their jobs during the closure periods were not entitled to unemployment benefits. However, in response to a public outcry, the Government enacted a new law so as to provide a special ‘Accommodation Allowance’ to workers above 67 years old who otherwise were not entitled to unemployment benefits.⁴¹⁷

171.  During the first lockdown (from 14 March until 3 May 2020), all schools were closed (see Part IV.A.4 above) and education shifted to online learning.⁴¹⁸ The right to education was affected by this move, firstly due to the need for internet access and computers,⁴¹⁹ as also highlighted by a report from the State Comptroller. The Ministry of Education did not have the full data regarding students who needed assistance in this regard, and families with a number of children encountered difficulties with supplying each child with the necessary electronic devices. There were no governmental or municipal solutions for these issues.⁴²⁰ Second, difficulties arose regarding identifying children who had trouble with online learning. There was no monitoring of their understanding of the materials and their progress.⁴²¹ Third, during the second and third lockdowns—the second lockdown was between 18 September and 17 October 2020, and the third lockdown between 8 January and February 2021, after which the schools and kindergartens were opened gradually—elementary schools were closed again, for a period of almost four months, and children moved again to online learning. Schooling for children in special education began operating only on the 7 March 2021 after a petition was submitted to the Supreme Court.⁴²² Children from grade 7–10 were left 344 days without learning in-person (as of 24 February 2020).⁴²³ Schools opened in Israel on 11 February 2021. These days, with the Omicron variant, even though schools are active, children with underlying diseases are under ‘personal lockdown’, due to the fact that they are at higher risk and there are no suitable solutions for their special needs.

172.  School closures had further effects, such as difficulties in identifying abused and neglected children. Zoom learning effectively stopped the reporting chain, causing other key stakeholders (such as school counsellors, social workers, etc) to start supporting the child too late, if at all.⁴²⁴ Additionally, during the first lockdown, all therapeutic services stopped: psychologists, street social workers, and youth at-risk NGOs did not operate and it took time before they reopened, damaging therapeutic outcomes. These services were restored only after a joint petition by several bodies was filed.⁴²⁵

173.  Due to severe isolation requirements (see Part IV.A.1 above), over 2,000 young people without family were not able to return to their residential care facilities.⁴²⁶ In addition to the clear hazards of being on the streets, many of them received fines for violating the Covid-19 regulations of being more than 100 metres or 1 kilometre away from their documented address.⁴²⁷ Lastly, extracurricular activities, including those of youth movements, were severely limited.⁴²⁸

174.  Israel’s prison population in 2020 stood at an average of about 14,000 inmates⁴²⁹ over the course of the year and has been characterized by a low number of Covid-19 cases, mainly due to the drastic measures put in place to minimize exposure of inmates to outside factors. So far, around 576 inmates and 808 prison guards have been diagnosed with Covid-19,⁴³⁰ of which one inmate has died. Israel’s prison authorities began preparations to avoid the spread of Covid-19 in the beginning of March 2020. The measures taken included implementation of emergency protocols under temporary legislation: prohibiting entrance of lawyers and other visitors to prisons, cancellation of family visits, cancellation of prisoners’ vacations, prohibition of bringing in items from outside prisons into the prisons, reduction in education, therapy, and rehabilitation activities, suspension of non-crucial medical treatments for prisoners in hospitals outside prison, and prohibiting prisoners’ physical presence in their respective legal hearings.⁴³¹ Only a few measures were regulated in primary legislation, like lawyer-prisoner meeting restrictions⁴³² and court hearings by video conference,⁴³³ because of the direct link to the criminal process. Except these, most of the measures were a prerogative authority of Israel Prison Service, which decides on use of these measures from time to time and in relation to the Covid-19 guidelines.

175.  Alongside these restrictions, alternative methods were put in place to mitigate the violation of prisoners’ rights as much as possible.⁴³⁴ These alternatives included requiring legal representation of prisoners in deliberations which they are prohibited from physically attending, allowing increased usage of telephone calls for legal advice and contact with family members, and a raise in allowances and money deposits to inmates for purchasing items inside prisons.

176.  For the entire duration of the restrictions, prisoners kept their access to legal aid, including their rights to petition the courts about their imprisonment conditions. Formal and official visitors and Red Cross representatives were also allowed into prisons. In addition, various steps were taken to prevent the spread of infections inside prisons by setting up quarantined spaces for infected inmates, conducting sample Covid-19 tests in all prison facilities, and early release of some prisoners which were nearing the end of their sentences.

177.  Some of the restrictions were removed after a couple of months, and today the entrance of lawyers and limited family visits to prisons are allowed, as well as gradually resuming rehabilitation activities. Some of the courtrooms have also returned to regular operation, allowing prisoners to physically attend their legal hearings again.

178.  Over the months of January and February 2021, following a public and legal debate, about 9,100 inmates deemed fit by the Ministry of Health’s criteria were willingly vaccinated against Covid-19 (see Part IV.A.8).⁴³⁵

179.  People residing in Israel without any legal status have become particularly vulnerable during Covid-19. Asylum seekers were hit harder than others, owing largely to the longstanding exclusionary policy implemented by Israeli governments.⁴³⁶ Asylum seekers were severely affected by the mass layoffs, since many of them were employed in the hotel and restaurant sector. Unemployment rates during the lockdown periods were estimated at over 70%.⁴³⁷ Asylum seekers are not entitled to welfare benefits, such as assistance for single-parent households, disability pensions, or child benefits—not even for disabled children. Furthermore, they cannot receive unemployment benefits or severance pay since these employer payments are deposited in a security fund and cannot be withdrawn until the asylum seeker leaves Israel. In the absence of any benefits or support, the Covid-19 layoffs significantly worsened the poverty and living conditions of this already vulnerable population (see Part V.B.2–3 above).⁴³⁸

180.  The Israeli National Health Insurance Law does not apply to asylum seekers. Consequently, they have no access to public health services, except in life-threatening emergencies. A few weeks after the crisis began, the Ministry decided to provide Covid-19 treatment to uninsured asylum seekers. Israel was also one of the first countries to vaccinate asylum seekers.⁴³⁹ However, the lack of an institutional infrastructure undermined the adequacy and efficiency of the treatment and services provided, as well as monitoring and supervision work. In response to these challenges, civil society organizations aided the Ministry of Health in establishing connections with the asylum seeker community and in making information and humanitarian assistance more accessible.⁴⁴⁰

181.  As for visas, the prolonged lockdowns and the pressure exercised by human rights organizations⁴⁴¹ compelled the Population and Immigration Authority to improve its services and to allow asylum seekers to renew their visas online.⁴⁴² Consequently, the maltreatment that characterized the previous visa renewal policy was significantly decreased.⁴⁴³ In addition, the pandemic facilitated procedures, allowing easier and quicker release of migrants and asylum seekers from administrative detention.⁴⁴⁴

182.  The Bedouin residents of the Negev/Naqab are an indigenous minority with a unique way of life, whose status of indigenous people has been denied by the State of Israel for more than 70 years.⁴⁴⁵ Those communities consist of more than 270,000 citizens, residing in Government-planned townships, villages recognized by the State, and villages that the State refuses to recognize.⁴⁴⁶ Around 90,000 people live in 35 unrecognized villages, with hardly any basic infrastructure that enables running water, electricity, paved roads, and waste disposal services.⁴⁴⁷

183.  Non-recognition of the Arab Bedouin ancestral ownership of their lands has been defined by several laws and regulations that aim to urbanize them and concentrate them in townships or penalize them, alternatively.⁴⁴⁸ One concrete effect of this policy is the demolition of houses. In 2020, some 2,586 structures were demolished in the Arab Bedouin communities,⁴⁴⁹ the highest number ever recorded.⁴⁵⁰ Demolition of structures continued despite the instruction of the Attorney General to reduce demolition warrants and police presence in the Naqab, after civil society sent an urgent letter requesting a halt in demolitions during the pandemic.⁴⁵¹

184.  The indigenous’ marginalization in the Naqab is primarily reflected by the fact that 72.9% of the population lives under the poverty line;⁴⁵² 46% of them are under 14 years old.⁴⁵³ Some 52% of the students from the Naqab are thinking of stopping their studies.⁴⁵⁴ Out of 142,000 people under 16 living in the Naqab,⁴⁵⁵ only 14% received computers from the Ministry of Education in 2020.⁴⁵⁶

185.  Decades of neglect, discrimination, and the denial of Bedouin civil rights have reached a peak with the spread of Covid-19 in Israel. Even though the mortality rate among Bedouin infants in the Naqab was 10.7 per 1,000 deaths before the pandemic (with an average of 3.0 per 1,000 deaths for the total population),⁴⁵⁷ medical services in unrecognized villages are still gravely lacking. For most of the population, the clinics are remote and inaccessible, MDA emergency services hardly reach the unrecognized villages, and in the absence of public transportation, distance is a major obstacle to receiving medical treatment. As of June 2021, the number of vaccinated people from recognized villages and townships over 60 years old reaches only 43%, compared with 75% in the general population,⁴⁵⁸ and as for population above 16 years old, only 25.4% have received the first dose of the vaccine. The low numbers are mainly due to a widespread scepticism, based on a trust crisis regarding the authorities and rumours on social media inciting scepticism of the vaccine’s safety and efficacy.⁴⁵⁹ The number of infected people in Bedouin society as of 26 February 2021 is 1,102,⁴⁶⁰ and around 50% are residents of the township of Raha. Furthermore, there were no accessible locations for vaccination for the residents of the unrecognized villages.⁴⁶¹

186.  It has been identified that most of the Bedouin community that present with Covid-19related symptoms do not test themselves due to a fear of losing their jobs, and to avoid going into isolation and risking others going into isolation and losing their income.⁴⁶²

187.  The physical conditions of dwellings in villages do not allow real isolation, constituting a risk for mass infection of the residents of regional councils of Neve Midbar and Al Kassum.⁴⁶³ For Arab Bedouin women this is even more difficult, as currently there are no appropriate isolation facilities that are culture-sensitive and cater to their needs. Furthermore, an appeal to the Supreme Court on this topic was denied.⁴⁶⁴ In addition, widespread scepticism over the vaccination campaign in Naqab is making the situation more dire. According to data obtained by Physicians for Human Rights, the budget allocated by the Ministry of Health for Arabic language campaigns was only NIS 4.1 million, some 10% of the total budget for such campaigns, while the Arabic-speaking sector comprises approximately 20% of Israel’s entire population.⁴⁶⁵ Consequently, local authorities were unable to disseminate essential information in Arabic for the prevention of the spread of the virus.

Rapporteurs:

Dr Einat Albin, Hebrew University of Jerusalem

Dr Ittai Bar-Siman-Tov, Bar-Ilan University

Professor Aeyal Gross, Tel-Aviv University

Dr Tamar Hostovsky-Brandes, Ono Academic College

Additional Reporting:

Dr Ori Aronson, Bar-Ilan University

Prof Avishai Beinish, Hebrew University of Jerusalem

Professor Amichai Cohen, Ono Academic College

Professor Nadav Davidovitch, Ben-Gurion University

Dr Matan Gutman, Interdisciplinary Center Herzliya

Dr Adam Shinar, Interdisciplinary Center Herzliya

Prof Michael Birnhack

Prof. Israel Doron

Dr Maya Gaffan

Mrs Elianne Kremer

Dr Shiran Reichenberg

Prof Noya Rimalt

Adv. Roni Rothler

Ms. Dror Sadot

Dr Sigal Shahab

The authors are grateful to Omer Bejerano for his excellent research and editing assistance.

Further thanks to Aner Shofty, Tamar Luster, and Asher Rottenberg for their research assistance.

Aeyal Gross, Einat Albin, Ittai Bar-Siman-Tov, and Nadav Davidovitch are grateful to The Israel National Institute for Health Policy Research for its support.