Israel's Jewish state bill: assessing the wider impact

NAZARETH, Israel: There could hardly have been a more fitting piece of political theatre this week as Palestinian legislators in the Israeli Parliament criticised a controversial new bill defining Israel as the nation-state of the Jewish people.

The proposed legislation, which was approved by Prime Minister Benjamin Netanyahu’s government on Sunday, is expected to get its first reading in the parliament, or Knesset, next week.

It is designed to demote Arabic - spoken by the fifth of the population who belong to the country’s Palestinian minority - from its current status as an official language, and makes “Jewish tradition” and “the prophets of Israel” a primary source of legal and judicial authority.

More specifically, it formally defines Israel as belonging to Jews around the world rather than to its citizens, which includes 1.5 million Palestinians.

Critics, including the Israeli President, Reuven Rivlin, and the government’s chief legal adviser, Yehuda Weinstein, have warned that the legislation will undermine democratic safeguards protecting the rights of Israel’s Palestinian citizens.

In explaining the need for the bill, Netanyahu told his ministers it was important that “there are national rights only for the Jewish people – a flag, anthem, the right of every Jew to immigrate to Israel and other national symbols”.

In a raucous parliamentary debate on Monday, two Palestinian members of the Knesset were ousted from the chamber by Deputy Speaker, Moshe Feiglin, as they lambasted the legislation.

One of them, Jamal Zahalka, had tried to quote from Hannah Arendt, a Holocaust survivor and philosopher, who had foreseen that a Jewish state would be incapable of offering its Palestinian minority proper rights or citizenship.

When Feiglin, a far-right member of Netanyahu’s Likud party, raised doubts about the source material, Zahalka observed that Arendt was the “opposite” of Feiglin, whom he called a “fascist.” On Feiglin’s orders, Zahalka was summarily ejected by ushers.

“As I was being escorted out, I called to Feiglin that he had the honour of being the first one to put the Jewish nation-state law into practice,” Zahalka told Middle East Eye.

Clashing worldviews

The Knesset clash was a graphic illustration of the opposing worldviews at the heart of the struggle over Netanyahu’s proposed Basic Law on Israel as the nation-state of the Jewish people.

Few human rights activists doubt that the new legislation, if passed, will severely harm the prospects for Israel’s Palestinian minority of ever living in peace or equality with their Jewish compatriots. In the words of Menachem Klein, a professor of politics at Bar Ilan University in Tel Aviv, the bill “upgrades discrimination.”

In protest, hundreds of Palestinian citizens changed their Facebook profile photos this week to one stamped “Second-class citizen."

Israeli Arabs are now putting 'second class citizen' stamps on their Facebook profiles http://t.co/bkx5oNHYAI pic.twitter.com/gTxfgMYTr5

The law also risks sabotaging any hopes of reaching a peace agreement to resolve the decades-old regional conflict between Israel and the Palestinians.

“This bill means that a right of return [for Palestinian refugees from the 1948 war] has been ruled as out of bounds by Netanyahu and the right wing before any negotiations take place on the matter,” said Zahalka. “Instead, it becomes the nation-state of Jews around the world. The state belongs to a Jew in Brooklyn more than a Palestinian citizen in Nazareth.”

The significance of the proposed nation-state law lies more in its political than legal ramifications – a fact that has been widely misunderstood by Israeli and international observers.

Most commentators have suggested Netanyahu’s legislation will endanger equality between the Jewish majority and Israel’s 1.5 million-strong Palestinian minority, downgrading the latter’s status to second-class citizens.

Echoing that view, the US State Department urged Israel “to stick to its democratic principles," adding: "Israel is a Jewish and democratic state and all its citizens should enjoy equal rights.”

The common assumption is that, aside from the occupation, Israel is a normal, Western-style democracy that is now under threat from Netanyahu’s bill. However, nothing could be further from the truth, according to Saleh Mohsen, a lawyer at Adalah, a legal human rights organisation representing Israel’s Palestinian minority.

“There is no principle of equality in Israeli law, and Netanyahu’s proposed law will do nothing to change that,” he told MEE. “Legally, it simply consolidates the existing discrimination, making it even harder for us to challenge and try to reverse the many already discriminatory laws in Israel.”

Worse than inequality

Israel lacks a constitution but its declaration of independence and several of its foundational laws - called Basic Laws - are already premised on the idea that Israel is a Jewish state.

Such laws, as well as countless administrative practices, privilege the rights of the Jewish majority over the country’s Palestinian minority - most clearly in the Law of Return, effectively a citizenship law for the Jewish population and one that restricts immigration to Jews only. (Palestinians gets their citizenship from a separate and inferior law, the Citizenship Law of 1952.)

“The problem is already worse than simply a matter of inequality,” said Sawsan Zaher, another Adalah lawyer. “Because Israel defines itself as a Jewish state, the Palestinian minority is assumed from the outset to be a security threat, or even an enemy.”

In practice, only Jewish citizens enjoy national rights, with Palestinian citizens solely able to claim inferior individual rights. Adalah has compiled a database documenting more than 55 laws that explicitly confer on Jewish citizens’ superior legal rights based on their national belonging.

Even in the parliament, the supposed cradle of Israeli democracy, where the ruckus between Feiglin and Zahalka took place, no Palestinian party has ever been invited to join one of the many complex coalitions that have ruled Israel. The platforms of the Palestinian parties have also been tightly constrained by the requirement to recognise Israel as a “Jewish and democratic state,” added Mohsen.

The paradox, observed Aeyal Gross, a law professor at Tel Aviv University, is that Netanyahu’s bill would settle the inherent tension in these two concepts by resolving the difficulty in favour of Israel being Jewish.

It “reinforces [Israel’s] status as an ethnocracy, not a democracy,” he added.  

Fight for right-wing camp

So why are Netanyahu and his right-wing coalition partners so keen to pass this law now, and what do they hope to achieve by it?

Part of the reason is related to an internal political wrangle between the Israeli centre and right over who best represents the Israeli Jewish public’s interests and how Israel presents itself to the outside world.

Naftali Bennett, a settler leader and the economics minister, recently used a commentary in the New York Times to argue that Israel should formally end the peace process and annex the entire West Bank.

Netanyahu has found himself being increasingly outmanoeuvred by political challengers on his right as his coalition wobbles, threatening a general election, said Bar Ilan University’s Klein. “He needs to show he is the true leader of the right-wing camp.”

In advancing the Jewish nation-state bill, Netanyahu has usefully put clear water between himself and the centrists in his cabinet, Yair Lapid and Tzipi Livni, both of whom have publicly opposed the measure.

He is also making good on the hard line he adopted during the peace negotiations that collapsed in the spring. During the talks, Netanyahu stirred controversy by demanding that the recognition of Israel as a Jewish state by Mahmoud Abbas and his Palestinian Authority become a key condition for an agreement.

Zahalka pointed out that Netanyahu had faced much criticism domestically: “There were those who said ‘How can we ask the world to recognise us as a Jewish state, when we ourselves aren’t clear what we mean by a Jewish state?’

“This helps to silence such critics,” Zahalka added.

Implications of disloyalty

In addition, Netanyahu appears to have adopted a political strategy of intentionally aggravating relations between the state and the Palestinian minority, in part, it seems, to position himself as the true champion of an Israeli public moving ever further to the right.

According to Jafar Farah, director of Mossawa – the Advocacy Centre for Arab Citizens in Israel - Netanyahu’s bill is “aimed at increasing the tension between Jews and Arabs.”

Shortly before his ministers voted to approve the measure, Netanyahu suggested that it was needed because two areas of Israel with large Palestinian populations posed a threat to the state. “There are some who wish to form autonomies in the Galilee or Negev and thus reject our nationality,” Netanyahu said.

The implication of disloyalty echoed inflammatory comments the prime minister made earlier this month in the wake of violent protests that followed the screening of a video showing police shooting dead a Palestinian youth in Israel as he fled.

Netanyahu suggested then that the protesters should be stripped of their citizenship and “move to the Palestinian Authority or to Gaza … Israel will not put any obstacles in your way.”

Further rationale for the law is a perception on the right that legal challenges from human rights groups like Adalah over the past two decades have threatened to gradually reverse the achievements of Zionism and erode the founding principles of the Jewish state.

The state’s Achilles’ heel – on this reading – is the country’s Supreme Court, the highest judicial body, which the right wing views as a bastion of liberalism and judicial activism.

Yariv Levin, chairman of the current ruling coalition and one of the drafters of the nation-state legislation Netanyahu has adopted, justified the bill on the grounds it would “return Israel to its Zionist roots, after years of ongoing damage done by the justice system.”

Crisis of Zionism

Yoram Hazony, head of the Herzl Institute, a Jerusalem-based research centre guided by traditional Zionist thinking, identified in a recent blog post the moment of crisis for Zionism: a hearing before the Supreme Court in 2000.

In that case, the Kaadan family appealed against its rejection from Katzir, one of the hundreds of Jews-only communities in Israel. The Kaadans had been barred by an admissions committee, whose chief function since Israel’s founding has been to block Palestinians from gaining access to most of the habitable land in Israel.

Although the court spent years trying to avoid making a clear-cut ruling, its hesitation provoked great concern on the right that the judges might eventually overturn one of Zionism’s core principles: “Judaisation” of the land in Israel. So fearful of this was Netanyahu’s government that it passed a law in 2011 giving a statutory basis to the admissions committees.

In Hazony’s words, the new ‘Jewish State’ bill’s purpose is “to re-establish the previous status quo on issues of Jewish national self-determination.”

A related concern on the right is the Supreme Court’s interpretation of earlier legislation – specifically The Basic Law on Human Dignity and Liberty, passed in 1992 - as implying a right to “equality.” The court has argued, even though equality is not mentioned in the law, that it is a precondition of human dignity.

Despite the implication, however, Zaher said that in practice the Supreme Court has been loath to use the principle of equality implied in the 1992 Basic Law to overturn the structural discrimination against Palestinian citizens.

She noted that when the court heard a petition in September against the Admissions Committee Law, it narrowly upheld the legislation, arguing that the court did not have the resources to investigate “hypothetical and theoretical claims.”

“That was after the admissions committees had been operating for decades, ensuring that Arab citizens are excluded from hundreds of communities across Israel,” she said.

Enemy agents

According to Klein, Netanyahu’s need to strengthen the discriminatory basis of legislation, giving it a constitutional status, has a more fundamental motivation related to Israel’s wider conflict with the Palestinians.

He pointed out that, in rejecting any partition of the territory of ‘Greater Israel’ which includes the occupied territories, Netanyahu and the right faced a demographic challenge. Half the population under their rule would be non-Jews.

“Palestinian citizens are part of that 50 percent. They support the creation of a Palestinian state, making them in Netanyahu’s eyes part of the enemy camp. They put the identity of an enlarged state at risk.”

He added: “This bill puts ethnicity above citizenship, and is one tool to circumvent this threat. It means anyone who identifies with the Palestinians is a traitor. That is why Netanyahu tells Palestinian citizens to move to the occupied territories. Because in his view most of them are enemy agents.”

Haaretz warned this week that, if Netanyahu’s measure passed, it would remove Israel “from the community of democratic nations, and give it a place of honour instead beside those dark regimes in which minorities are persecuted.”

The reality, however, may be somewhat different. As Palestinian lawyers and human rights groups in Israel explain, Israel has long dwelt among such dark regimes. Netanyahu’s bill simply helps to shine a light on that fact.