Steve Ohana (economist, PhD)
Déborah Zerbib (lawyer at the Israeli bar)
On behalf of the V.R.A.I. (Vaccination Reinformation Actions Israel) collective
While the French Parliament has just adopted the “sanitary pass” under controversial circumstances, and while the European institutions are currently considering a project for a European “sanitary passport”, it seems useful to us to draw up a provisional assessment of the Israeli experience of the “tav yarok” (“green pass”). This pass, which has already been in force for several months in the Hebrew State, should in principle be suspended on June 1, according to an announcement by the Israeli government on May 23, 2021.
In this article, we will go beyond the official laws and regulations, which describe only a limited aspect of our reality, to present you with real examples from authenticated testimonies as well as from our own personal and professional experience as citizens of this country.
Chronology and guidelines of the tav yarok
Let us first review the sequence of events that led to the establishment of the tav yarok, a sequence that will allow us to highlight some parallels and differences with the French situation today.
As of February 21, the first directives from the Israeli Ministry of Health were applied, setting out the rules for the application of the green pass, the places where it was not required (shopping centers, markets, street stores, libraries, museums, zoos/safaris/amusement parks) and the places where it was required (sports halls and studios, cultural and sporting events, public swimming pools, hotels, prayer places with the obligation to display a sign). The green pass is granted to vaccinated persons and COVID “convalescents” (persons who have tested positive) as well as to children under 16 years of age with a negative PCR test (valid for 48 hours or 72 hours depending on the case). Fines ranging from 1,000 ILS to 10,000 ILS are imposed on those who violate these guidelines (both citizens and owners of the above mentioned places).
These guidelines ended on March 7, according to the date stipulated in the body of the text, and it was only on March 10 that 3 out of the 4 members of the Israeli Parliament (the “Knesset” has 120 members) voted to extend the guidelines (retroactively) and to refine the requirements for party venues, events (green pass with the possibility of admitting up to 5% of guests without a green pass upon presentation of a negative PCR test), restaurants (indoors for green pass holders, outdoors for others), hotels (reopening of dining rooms), prayer halls (possibility of opening without a green pass but with a limited capacity of persons — up to 20 persons indoors and 50 outdoors). Fines for violations by the owners of the above-mentioned places have been set to 5,000 ILS.
As can be seen, the adoption of the law was gradual but nevertheless relatively quick. And it should be noted that in some places (sports clubs, stores, food courts in shopping malls, etc.) the green pass was already in effect before the law was officially passed! Thus, the Israeli people saw fit to anticipate the adoption of the law and to enforce what were still only directives from the Ministry of Health. It should be remembered that under Israeli and French law, a provision such as the sanitary pass or green pass is a discriminatory measure, constituting a direct violation of certain fundamental rights such as the right to confidentiality of one’s medical data, but also the freedom to come and go, the freedom to work, to consent to medical treatment or even the right to respect for human dignity etc…
In reality, the application of the green pass reveals many deviations, both from a practical and moral point of view, as the gap between theory and practice can sometimes be very large.
Before drawing up a non-exhaustive list of the cases we have encountered, we will look back at a particularly striking episode of discrimination against the non-vaccinated. During the first weeks of the application of the tav yarok, the non-vaccinated were subjected, in addition to the deprivations of the tav yarok, to the prohibition to leave the Israeli territory. Israeli lawyers, already involved in the defense of freedoms since the beginning of the health crisis, mobilized to counter this liberticidal measure and the Supreme Court, which ruled on the appeal presented, ordered the government to put an end to this measure and to authorize entry and exit from the territory to all citizens, whether they are vaccinated or not. Despite the lifting of this measure, the conditions of entry into Israel remain partly discriminatory, with unvaccinated Israeli citizens subject to a period of isolation after entry, while vaccinated persons are not required to undergo this quarantine, even though recent studies show that vaccinated persons can be carriers of the virus, infected with COVID and contaminants.
Finally, it is important to emphasize that the tav yarok has been applied in a very heterogeneous way in the country, and its discriminatory and restrictive character for non-vaccinated persons has varied greatly depending on the degree of leniency or on the contrary of rigor of the person deciding (or not) to apply it, this person holding in practice a very important discretionary margin in the interpretation and application of the law.
Schools and universities
In many universities and high schools, the presentation of a tav yarok or PCR test was initially required to attend classes or exams, or even to authorize movement in and out of student housing. After the Easter vacations, some schools required children to take a PCR test in order to return to school. These discriminatory practices were finally officially prohibited in schools and universities by the Parliament, following a strong mobilization of citizens and various legal appeals to the Supreme Court. Parents who were no longer allowed to enter the school grounds or were forced to say goodbye to their children in front of the kindergarten gate were once again allowed to enter these premises (for example for parent/teacher meetings, end-of-year shows or other ceremonies) but, in practice, this still depended on the goodwill of the school and university directors. For, despite the official cancellation of the green pass for this sector, many universities, Hebrew learning centers for new immigrants or even schools (kindergartens or primary schools) continued to demand the green pass from adults or children of vaccination age (over 16), ignoring the government’s decisions.
The government only intervened in the private sector in exceptional cases (gyms and hotels are the only cases explicitly covered by the law), leaving de facto the freedom to the company managers, store owners, etc. to apply or not the green pass, considering its discriminatory character. However, we have witnessed cases where a green pass has been required in situations not explicitly provided for by the law. For example, a woman had her right to visit her sick husband in a nursing home taken away from her overnight, on the pretext that she was not vaccinated. No alternative was proposed to her, such as the presentation of a negative PCR test.
Some municipal services were reserved for vaccinated citizens only. In Ashdod, Ra’ananna and Haifa, town halls were only accessible to green pass holders, and as a result, other citizens were no longer able to access basic services such as obtaining a life certificate for retirees receiving their pension from abroad. These same town halls organized ceremonies, concerts or entertainment (such as for Independence Day in Israel) only accessible to green pass holders. Ironically, concentration camp survivors have been denied access to Holocaust memorial ceremonies because they were not vaccinated!
Sports halls, restaurants, hotels, theaters, places of worship
The issue of the green pass also concerned gyms, swimming pools and others. The Country Club of Ra’ananna, which includes gyms and swimming pools and offers activities for adults and children, had decided to open its access only to vaccinated people even before the law passed its first reading (as a reminder, laws in Israel are adopted after three readings in the Knesset). After a few months, the Country finally reversed its decision and since a few weeks allows access to all its members, whether or not they have the tav yarok.
Access to hotels, concert halls, party halls and synagogues has been conditioned by the presentation of a green pass or, in certain specific cases, a negative PCR test. Non-vaccinated families wishing to take a few days of vacation had to resort to private rentals, most of which were open to all, although there were advertisements for apartments reserved for vaccinated people only. As an anecdote, some hotels were recently able to open their doors, without presenting a green pass, to people from the South of Israel fleeing Hamas missiles… Guests at a bar mitzvah, a wedding or a birth taking place in a hotel, hall or synagogue had to present their tav yarok (or a negative PCR test for hotels and halls) if they wanted to take part in the joy of their family and friends. As far as synagogues are concerned, we note the paradoxical nature of these discriminatory measures in places whose vocation is to promote human communion in tolerance and love of neighbor. As for restaurants, non-vaccinated people had to sit outdoors, as well as families with vaccinated adults and children under 16. This has led to aberrant situations where vaccinated parents could not sit with their children (since they were not vaccinated) and were forced, in shopping malls or stores such as Ikea, to eat in a makeshift corner outside the dining area or to move a chair closer to the barrier delimiting the dining area, as in these photos that have made the rounds of the web.
As for the application of tav yarok in the workplace, it is mostly at the discretion of the employer. Some unvaccinated employees have been pressured and sometimes even threatened with dismissal or a change in their employment contract. Companies such as Mobileye and the retail giant Shufersal required employees to show tav yarok to enter their workplaces early on. In some city halls, employees were forced to get vaccinated or risk being put on unpaid leave or even fired. Hadassah Hospital in Jerusalem placed 80 employees on unpaid leave for refusing to vaccinate “without valid justification”. Many other hospitals have required doctors and nurses to present the tav yarok or alternatively a negative PCR test every 72 hours. There is no case law in this area yet, as labour court cases have recently begun and no case has yet been decided on the merits.
Access to health care
Finally, access to medical care itself has been affected by the tav yarok. For example, some maternity wards have refused access to unvaccinated couples who have come to visit birthing units as is customary in Israel before giving birth. We saw the case of a young man who was forced by the hospital where his wife was to give birth to vaccinate himself in order to attend the delivery. This young man ended up being hospitalized with quite serious side effects from the vaccine. Some people who were not vaccinated or who received only one dose of the vaccine were denied access to medical care. At this link, you can read, for example, the testimony of a 42-year-old man who, after surviving a very serious cardiac event following his first dose of vaccine, was denied an appointment for cardiac rehabilitation because he had not yet received his second dose of vaccine…
The attitude of lawyers
Surprisingly, some law firms, which are supposed to be the guarantors of fundamental freedoms, have refused to defend clients who do not have a green pass, or have volunteered to defend (free of charge) employers who have been sued by their employees put on unpaid leave or fired because they did not agree to be vaccinated.
The legal and political battle against tav yarok
The battle against tav yarok was above all a civic one, as the political parties and in particular the members of Parliament largely deserted it. The rapid vaccination of nearly 80% of the population over 16 years of age gave a strong popular legitimacy to this discriminatory practice, a large part of the vaccinated people supporting tav yarok, some because they believed that it would allow Israelis to collectively get out of the health crisis through the attainment of collective immunity, others because they felt endangered by contact with the unvaccinated, and still others because they expected to receive privileges in return for their choice to be vaccinated.
The lawyers involved in the defense of fundamental freedoms have waged an intense battle against tav yarok by intervening relentlessly on social networks and in demonstrations to explain to the population their rights, by providing model letters directed to employers, school principals, etc. guilty of discrimination, by filing lawsuits in Israeli courts, but above all by appealing to the Supreme Court, guarantor of the fundamental laws in Israel. They also kept the citizens informed whenever bills or liberticidal laws were to be introduced or voted on in the Knesset, so that they could contact the members of Parliament directly and share their opinions on the Knesset’s website reserved for this purpose.
At the forefront of this fight is lawyer Tamir Turgal, a long-time expert on the issue of mandatory vaccines, and Oren Pasternak, representative of the “mehaat haribon” (“sovereign protest”) movement.
The arguments put forward to attack the legitimacy of tav yarok were of several kinds:
- Epidemiological arguments (see this expert opinion signed by renowned Israeli professors in full version in Hebrew): very low risk of transmission of a severe form of the disease from a non-vaccinated person to a vaccinated person, uselessness of tav yarok in terms of public health, both in the case of high efficacy and in the case of a lower efficacy of the vaccine than announced, impossibility of achieving collective immunity even through mass vaccination…
- Ethical and legal arguments: illegitimacy of imposing coercive measures or social pressure in favor of a treatment that is still in the clinical test phase, notably under the Nuremberg Code and the Declaration of Helsinki (see this essay by a member of the VRAI collective on this issue), lack of transparency on the contract between Pfizer and the Israeli government, concealment of information on the side effects of the vaccine… In this respect, it should be recalled that there is no independent pharmacovigilance agency in Israel on the side effects of the vaccine, which motivated the creation, under the aegis of a psychiatrist, Dr. Pinky Feinstein, of an civil committee. This led to the creation, under the aegis of a psychiatrist, Dr. Pinky Feinstein, of an inquiry civil committee (“Israeli People’s Committee”). The committee, which includes doctors, lawyers, professors, etc., has centralized the testimonies of those who suffered side effects after the vaccine (see this video and this report in English).
In this fight for freedom, the citizens themselves also took part, with for example the creation of an alternative pass to the tav yarok, called “tav enoshi” (or “humanitarian pass”) which allowed to promote on social networks the businesses (stores, restaurants…) refusing to take part in this discriminatory system.
The psycho-social impacts of tav yarok
The tav yarok has called into question the entire fabric of social life. As an instrument of coercion for those who give in to it and a synonym of relegation for the others, the green pass has caused considerable psychological and social damage, some of which is unfortunately irreversible. By allowing and encouraging the disclosure of medical secrecy in the public place, by promoting the stigmatization, the fear and the exclusion of the non-vaccinated, by leading to their exclusion from the public space, by delivering them to the disapproving and contemptuous judgment of their professional, friendly and family environment and by subjecting them to professional discrimination that can go as far as the loss of their job or even their exclusion from the labor market, the green pass has turned a category of citizens who were perfectly integrated into society a few months ago into a class of pariahs. But the damage does not stop there, because, through coercion, the green pass has also led people who are resistant to the vaccine to be vaccinated against their will in order to have the right to participate in social life, which is also extremely harmful. Faced with this brutal and profound rupture of social life, a Facebook group (“Navigating in the storm”), created by Dr Pinkie Feinstein (previously mentioned), and gathering 8500 members (which is very important for a population of less than 9 million) has allowed people in pain to exchange in the form of texts, poems, songs, their wounds, their sadness and their angers.
In conclusion of this quick overview of the Israeli experience with tav yarok, we think it is important to emphasize three points that may shed light on the opposition to the sanitary pass. First, even if we do not know precisely why the government finally decided to suspend the tav yarok from June 1, it is reasonable to think that the legal mobilization, and in particular the appeals (some of which are still pending) to the Supreme Court, weighed in on this decision. Indeed, the legal legitimacy of the tav yarok was eroding more and more as the sanitary situation in the country improved and its enforcement became laxer (especially in restaurants). It is important to point out here that, despite this undeniable success of the mobilization, it is necessary to remain vigilant, because the intentions of the Israeli authorities remain unclear, particularly with regard to the possibility of reactivating the tav yarok in the event of, for example, the appearance of new vaccine-resistant variants… Secondly, coordination is the key to success: information must flow from the grassroots to the top of the movement, so that citizens opposed to the health pass (this can be unvaccinated people as well as vaccinated people choosing not to use their health pass in solidarity with the unvaccinated, a behavior that has been observed in Israel) know how to proceed and to whom to turn when they face discrimination, and conversely, that information about local experiences flows up effectively so that it can then be processed, exploited and disseminated. Finally, as the health pass is promoted internationally, the fight against it is also international in essence. An international coordination between the movements of resistance to this pass is desirable in order to allow an effective sharing of experiences and knowledge. We hope that this summary of the situation in Israel, at least until June 1, 2021, will contribute to this.