Israel Opens for Business, Producing Legal Dilemma

The Green Pass model sanctions those refusing to vaccinate, raising questions all countries returning to normalcy will face

Desperate to reopen its economy, Israel implemented the Green Pass system on Sunday, allowing cultural venues and most businesses to operate. However, the model has met with objections, as it lays sanctions on those exercising their right not to be vaccinated against COVID-19.

Israel’s national theatrical company, the Tel Aviv-based Habima Theater, has been running rehearsals for two weeks, preparing for the restart of the country’s cultural life.

“We are working around the clock,” Ron Granot, Habima’s spokesperson, told The Media Line. “All the teams are working in the theater as we speak to prepare it to reopen to the public.”

Ron Granot, Habima’s spokesperson. (Lia Yaffe)

They plan to open at the beginning of April with five new plays, Granot said.

The return to life of theaters and cinemas is part of the second stage of the government’s plan to resume activity gradually, with each step contingent on the percentage of citizens vaccinated and the number of new coronavirus infections.

Full operation of the education system, and restaurant service, other than delivery and take-away, is still on hold.

The Prime Minister’s Office and the Health Ministry said in a joint statement that “gyms, cultural and sports events, exhibitions” and more would be allowed to reopen on February 21, with the second stage coming into effect. Entry to these venues, however, is limited to those bearing a Green Pass, a Health Ministry-issued certificate that can be either digital or printed, indicating that the bearer is at least a week after being fully vaccinated or has recovered from COVID-19.

However, people have had trouble obtaining the Green Pass, available through an overburdened App, ministry website and ministry hotline, so Vaccination Certificates will also be accepted at first.

The statement further listed “malls, open-air shopping centers, markets, street-front stores” among other businesses that are allowed to reopen under the Purple Badge limitations, which dictate the number of people allowed in a store at a given time, for example.

Although the Green Pass system will allow the economy to reopen and life to return to relative normalcy, the system’s approval has not been without hitches. The cabinet decision that stipulated the enforcement of limitations on a discretionary basis – distinguishing between the vaccinated and recovered, and those who refuse to be vaccinated or just have not yet done so – required repeated consideration by Israel’s attorney general.

Since February 4, everyone from age 16 up has been able to get inoculated, almost all with the Pfizer vaccine. Children with accompanying parents can substitute a recent test showing they are COVID-19 free.

Dr. Netta Barak-Corren, a professor at the Hebrew University Faculty of Law, described the dilemma.

“There’s a real question here regarding an individual’s right to make their own decisions, and their right to pass freely in the public domain,” she told The Media Line, because on the other hand, “the consequences of the spread of the pandemic are not solely personal.”

Barak-Corren co-authored a position paper on the legality of discretionary policies that differentiate between the vaccinated and non-vaccinated. In the paper, which was submitted to the attorney general, she posited that placing differentiated limitations is legal in the current situation.

“You have to take the economic ramifications into account,” she said, again pointing to the health threat.

Barak-Corren explains that considering the present implications of the pandemic for the population, she and her co-authors concluded that setting some limitations only on the non-vaccinated and non-recovered is legal. The key terms in this discussion are proportionality and justifiable causes, and so long as the differentiation is put in place to serve justifiable causes – such as reopening the economy – and the discrimination is in true proportion to the threat of the pandemic, the Green Pass policy has a legal basis.

The jurist cautioned, however, that such measures should be taken carefully, and that a change in the situation – for example, if the danger from the pandemic lessens – would require reconsideration of the policy.

Meanwhile at Habima, preparations to comply with the Green Pass regulations are proceeding at full pace. Granot explained that the theater has implemented an innovative system.

“We’ve ordered a technological system that basically allows us to identify the faces of those coming to the theater,” he said. “A person can order tickets at home and enter his details, and when he arrives at the theater, he doesn’t need to wait in line to get in. He simply arrives with the digital ticket and he can enter. The system recognizes those who have a Green Pass, it recognizes that you’ve received the vaccine and that you actually are the person with the Green Pass.”

The Green Pass lane at the entrance to Habima Theater, Tel Aviv, Israel. (Courtesy Preciate)

Any other option would either create a lengthy line at the theater entrance or cause the inspections to be less thorough, “because you have to see an official ID in addition to the Green Pass,” he explained. However, a “regular” line is open, for those that prefer to show their Green Passes at the entrance.

“Soon we will start advertising the tickets on social media, and we’re off – waiting for the audience to arrive,” Granot said.