Yousef T. Jabareen in Defining Israel: A Forum on Recent Attempts to Determine Israel’s Character
[This essay is part of Defining Israel: A Forum on Recent Attempts to Determine Israel’s Character. The forum’s home page can be found here.]
Since the establishment of the state of Israel, relations between Arab citizens and the Jewish majority — including state authorities — have been fraught with tensions related to the divergent national identities of the two groups. This divide contributes to the tremendous challenge of creating a definition of the State of Israel and drafting a constitution inclusive of all of Israel’s citizens. The definition and constitution significantly impact the Arab-Palestinian minority due to majority-minority relations and the status of Arabs generally. The Arab-Palestinian minority would gain from ensuring that any legislation, and particularly legislation that will have constitutional status, will serve to reduce deep and long-standing inequalities between Arabs and Jews rather than exacerbate them. Understandably, the nature of the process — and the extent to which it incorporates the principles of democracy — impacts real human lives and their status in the country.
Although the Basic Law Proposal: Israel is the Nation State of the Jewish People has been modified since it was first proposed in 2011, in its current form (that presented by the Prime Minister in November 2014) the bill creates and deepens existing inequalities between Jews and Arab-Palestinians in Israel. Due to its constitutional status, passage of this bill would put an end to in-depth discussion of the status of the Arab-Palestinian community in Israel. The bill addresses the formal definition of the state and its symbols but, even more crucially, encompasses issues of central importance to Palestinians such as immigration, citizenship, land rights, culture, religion, and more. As such, the bill establishes Jewish national belonging as the basis for group-based privileges in the areas noted above without creating a provision for similar collective rights for the Arab-Palestinian national minority, and in doing so, this legislation contradicts relevant principles of international law. The final result would be a formalized legal bias in favor of the Jewish majority and to the detriment of the Arab minority. This constitutional basis for state-sanctioned discrimination would further erode the equal citizenship rights Palestinians are entitled to on an individual basis and, in all likelihood, would deepen the rift between Arab-Palestinians and Jews in Israel by further entrenching and consolidating deep-rooted discrimination against the Arab minority.
The Basic Law and International Law
The proposed basic law stands in violation of the fundamental rights of citizens according to established norms of international law. In particular, it is injurious to the principle of equality and non-discrimination on the basis of national origin, race, or religion. Israel has signed a number of relevant treaties including the International Convention on the Elimination of all Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Rights of the Child. Two documents specifically address the issue of minority rights: the 1992 United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and the 2007 United Nations Declaration on the Rights of Indigenous Peoples.
In the context of international law, the proposed basic law makes a mockery of international legal standards and Israel’s stated commitment to uphold them. The Arab-Palestinian community in Israel is a substantial national and indigenous minority and, as such, is entitled to full civil individual equality as well as collective equality. The collective rights granted to minorities are inherent rights derived from the groups’ existence as a group, which distinguishes it from the majority. As I have explained elsewhere, these rights are meant to ensure substantive equality and provide the group with individual and collective protection under the law. Accordingly, international law is intended to equalize the inherent power imbalance between minority and majority populations — a pre-requisite for self-actualization on the individual and collective bases within any given society.
international law is intended to equalize the inherent power imbalance between minority and majority populations
In line with international law, the granting of collective rights would involve granting Arabic a status equal to Hebrew in law and in practice, the equitable distribution of all public resources including effective representation in public institutions and decision making bodies, and fair and just arrangements for immigration and citizenship. Such collective rights should also involve Arab-Palestinian self-steering in the realms of education, religion, culture, and media, as well as the recognition of Palestinian peoples’ historical rights such as the right of return for people displaced from their homes and villages, recognition of land rights, and the placement of religious matters in the hands of the community.
Furthermore, the proposed basic law stands in direct violation of the UN’s 1947 partition plan as outlined in Resolution 181. This resolution, instrumental in bringing about the establishment of the state of Israel, called on the two states (Israel and Palestine) to adopt a “democratic constitution.” The framers meant to ensure equality; resolution 181 notes: “No discrimination of any kind shall be made between the inhabitants on the ground of race, religion, language or sex. All persons within the jurisdiction of the state shall be entitled to equal protection of the laws.” Addressing the two states’ constitutional requirements, resolution 181 declares that “The Constituent Assembly of each state shall draft a democratic constitution for its State” and that each constitution shall include instructions “guaranteeing to all persons equal and non-discriminatory rights in civil, political, economic and religious matters and the enjoyment of human rights and fundamental freedoms, including freedom of religion, language, speech and publication, education, assembly and association.” The Partition Plan also addressed holy places and religious and minority rights. While non-discrimination is a central feature of resolution 181 — a resolution fully adopted by Israel — supporters of this basic law nonetheless seek to codify discrimination in the legislation discussed here.
Discrimination and Exclusion Enshrined in Law
I will now examine the various clauses of the proposed legislation and analyze their potential adverse impact on the Arab minority in Israel.
“The national home of the Jewish people”
The introductory section aims to clarify the definition of the state of Israel as follows:
Article 1 of the bill’s most recent version states that the law aims “To define the identity of the State of Israel as the nation state of the Jewish people and to anchor the values of the State of Israel as a Jewish and democratic state, in the spirit of the principles in the Declaration of the establishment of the State of Israel.”
The opening of Article 2, entitled “Fundamental Principles,” notes that “The land of Israel is the historic homeland of the Jewish people and the place where the State of Israel has been established.” Article 2 (b) states that “The State of Israel is the national home of the Jewish people in which they realize their right to self-determination in accordance with their cultural and historical heritage.” Afterwards Article 2 (c) states the “The right to exercise national self-determination in the state of Israel is uniquely that of the Jewish people.” Accordingly, the law in its current formulation rejects the principle of self-determination for non-Jewish groups and the notion that the country can be a homeland to other national groups. Only at Article 2 (d) does the proposed legislation address the democratic aspect of the state, noting. “The State of Israel is a democratic state based on the foundations of freedom, justice, and peace as envisaged by the Prophets of Israel, and it upholds the individual rights of all its citizens according to any law.” The democratic aspects of Israel are not explained in any further detail in the remainder of the proposed legislation.
Importantly, the bill gives constitutional status to the “Land of Israel” as opposed to the country or state of Israel. This nuance intends to give added weight and legitimacy to the Jewish people’s claim of having a relationship with the historical land of Palestine; from the viewpoint of the text, historical Palestine is considered to be the exclusive historical homeland of the Jewish people.
The law currently defines Israel as a “Jewish and democratic” state. Such a formulation centrally and regularly features in the opening statements in many pieces of Israeli legislation (see for example here, here, here, here, and here). Former President of the Israeli Supreme Court, Aharon Barak, in addressing the definition of the state as state which favors the Jewish national group, wrote as follows: “What, then are the ‘core’ characteristics shaping the minimum definition of the State of Israel as a Jewish State? These characteristics are derived from Zionism and Jewish heritage. At their core stands the right of every Jew to immigrate to the State of Israel, where the Jews will constitute a majority; Hebrew is the official and principal language of the State and most of its holidays and symbols reflect the national revival of the Jewish People. The heritage of the Jewish People is a central component of its religious and cultural legacy.”
The proposed bill, which separates the Jewish and democratic formulation into two distinct parts, would depart from the status quo. As it begins with the Jewish element, the bill displays a clear preference for this aspect of the definition and, more importantly, includes Jews who are not Israeli citizens. From a democratic perspective, particularistic statements, such as “The State of Israel is the national home of the Jewish people in which they realize their right for self-determination” and “The right to exercise national self-determination in the State of Israel is uniquely that of the Jewish people” clearly excludes the 20 percent of Israeli citizens who do not belong to the “Jewish people” while also challenging their civil and democratic rights. Accordingly, this legislation would not only negatively impact feelings of belonging of Arab-Palestinians who are an indigenous minority, but also give this sentiment of exclusion constitutional backing.
The legal definition of the state of Israel causes concern. The clear bias in the law’s current formulation is not only problematic in principle but also reflects an obstacle in practice to the achievement of substantive equality for the Arab-Palestinian minority. This group requires redress from decades of institutionalized injustice and discrimination. Furthermore, constitutional preference for the Jewish majority will facilitate the granting of group-based rights and privileges to the Jewish majority while providing legal support for discriminatory policy towards Arabs on the individual and collective levels. This bill will take the currently very problematic situation and codify it in law with all the troublesome social and political implications this entails.
Arab-Palestinian citizens will see themselves downgraded from being entitled to equal citizenship rights de jure to second class citizens
Defining the state as the state of the Jewish people within the constitution will create a hierarchy of citizenship with Jewish citizens being awarded favored status. Arab-Palestinian citizens will see themselves downgraded from being entitled to equal citizenship rights de jure to second class citizens. Indeed, the bill would establish Arab-Palestinian citizens’ lower raking status.
The leadership of the Arab community in Israel has developed alternative — and more inclusive — definitions of the state including: “A Multi-Cultural and Democratic State,” “A State for all its Citizens,” “A State of all its Nations,” “A Jewish and Arab Democracy” and “A Multi-Cultural and Bi-Lingual State.” A policy paper drafted by the Association for Civil Rights in Israel (ACRI), the country’s foremost human rights organization, is instructive here. It noted that:
“State of the Jewish people” (or other similar expressions) is a loaded term with many possible interpretations and by making it binding in the constitution, it creates a dangerous opening which could justify discriminatory and racist policy towards non-Jews and it raises a concern that [such a clause] could subordinate the safeguarding of rights while justifying the discriminatory application of such rights.
Section three of the proposed legislation gives constitutional status to the current state symbols. As such, it establishes the country’s current national symbols — all of which have Jewish connotations — with constitutional backing. Under the heading “State Symbols,” the national anthem is Hatikva, the flag is white with two sky blue lines close to the margins and a Star of David in sky blue positioned in the flag’s center and the state’s symbol is a menorah with seven branches, olive branches on both sides and the word Israel at its base.
Needless to say, all of these are national Jewish symbols and the national anthem, in particular, is a Jewish Zionist anthem which, due to its lyrics and symbolism, Palestinians could never adopt. Furthermore, the State’s Flag, Anthem and Emblem Law of 1949 and the State Seal Law of 1949 already grant formal legal status to the flag, anthem, emblem, and seal. Granting constitutional status to these symbols will deepen Palestinians citizens’ existing feelings of alienation. Alternative Jewish perspectives on the issue of state symbols (and other aspects discussed here) have been proposed, such as by the Jerusalem Institute for Israel Studies who have argued instead for “Inclusive Citizenship as a Framework for Jewish-Arab Relations in Israel.”
Immigration and Citizenship
A number of sections of the proposed basic law relate to issues of immigration and citizenship. Article 4, for example, stipulates that the automatic right to immigrate and achieve citizenship belongs exclusively to Jews as follows: “Every Jew has the right to immigrate to Israel and acquire citizenship of the State of Israel in accordance with the law.” Article 5 builds on this, noting: “The state shall act to gather the exiles and to strengthen the link between Israel and Jewish communities in the Diaspora.” Article 6 further emphasizes the right of Jews to citizenship, determining that “The state will provide aid to members of the Jewish people in trouble or in captivity due to the fact of their Jewishness.”
The proposed basic law would codify existing patterns of discrimination in immigration and citizenship that already appear in the Law of Return, the Citizenship Law and the Law of Entry Into Israel. According to the Law of Return, for example, Jews and their family members — including family members who are not necessary recognized as Jews and are not in need of protection — are immediately eligible for citizenship due to their “return.” This broadly applicable law also grants such immigrants a number of substantial economic benefits and privileges.
The Law of Return stands in stark contrast to immigration policy granted to non-Jewish spouses of Israeli citizens who, in the best case scenario, are only granted citizenship rights after a long, arduous, and frustrating process (Needless to say, Palestinians — either citizens or otherwise — are not entitled to any form of economic benefit by virtue of immigration). Even worse, non-Jewish spouses who are Palestinians from the Occupied Territories, find acquisition of citizenship — or even legal residency inside Israel — virtually impossible, following a 2003 draconian amendment to the Citizenship Law (family reunification).
In line with a preference for Jewish immigration, further Articles in the proposed bill strengthen the rights of Jews in Israel and abroad vis-à-vis Israel. Article 7 (a) focuses on the Jewish people in Israel and abroad when it states that “The state shall act to preserve the cultural and historical heritage and tradition of the Jewish people, and to instill and cultivate it in Israel and the Diaspora.” On the other hand, Article 7 (c) addresses Israeli residents when it determines that “The state will allow every resident of Israel, irrespective of religion, race or nationality, to work to preserve their culture, heritage, language and identity.” Article 7 (a) is formulated as an obligation and a duty which is constitutionally-bound and requires the state to work on behalf of the Jewish people. Article 7 (c) grants a similar right to residents in Israel but uses the softer and more passive wording of ‘allowing’ preservation of culture, heritage, language and identity.
Article 8 contains further evidence of Jewish content relating to the official state calendar. It determines that “The Hebrew calendar is the official calendar of the state.” This article reflects the status quo as established by the Law of the Use of the Hebrew Calendar—a law relevant for the Jewish majority only. A parallel and more inclusive law recognizing the calendar of the Arab minority does not exist.
Days of Rest
Legislation that establishes national holidays in Israel also discriminates against the state’s Arab citizens. Similar to the examples above, the proposed basic legislation would make holidays constitutional. Article 9 (a) states “Independence Day is the national holiday of the state” while 9 (b) notes that “Day of Remembrance for the Fallen Soldiers of Israel and Holocaust and Heroism Remembrance Dayare official state memorial days.” Article 10 establishes that “Designated days of rest in the State of Israel are the Sabbath and the holy days of Israel, on which no worker shall be employed except under conditions determined by law; members of communities recognized by law are entitled to rest on their Sabbath and holidays.” This also establishes state-sanctioned discrimination in rest days and holidays — giving legal sanction to those which have special meaning for the Jewish people, without recognizing the holidays of the Arab minority. The law fully recognizes Jewish holy days and their right to take days off on their holidays. In contrast, the law does not recognize nor name the holy days of other groups — including the 20 percent of the population that is Arab. The allowance to “rest on their Sabbath and holidays” does not correct the imbalance embedded in law, and given these poor protections for Arabs, and Arabs’ disadvantaged social and legal position, they are dependent on the goodwill of their (often Jewish) employers for those days off.
Similar to the right to celebrate ones’ tradition outlined in Article 7(c), the authors strengthened the wording in relation to Jewish holidays and rest days. Whereas Jewish people do not work, other recognized groups (which are unnamed) “are entitled to rest” — a right conditional upon government decisions.
Jewish Law as a Source of Inspiration for Legislators
While previous Articles addressed Jewish peoplehood, Article 11 addresses the Jewish religion. Article 11 (a) determines that “Hebrew law shall serve as the source of inspiration for the Knesset” while Article 11 (b) suggests that “Should the court encounter a legal question that demands a ruling and be unable to find an answer through the body of legislation, legal precedent, or clear analogy, it shall be decided in light of the principles of freedom, justice, integrity, and peace associated with the heritage of Israel.” While such legislation is currently on the books, similar to other aspects of the proposed bill, this proposed framing would demonstrate a constitutionally mandated preference for the religious tradition of the Jewish majority.
Passage of the basic law would also further entrench legislation of this nature while creating serious obstacles to its repeal. Article 13 states that “Rights accorded by this basic law are not to be infringed upon except through law befitting the values of the State of Israel that is designed with proper purpose and to an extent no greater than required, or according to a law by virtue of explicit authorization stated within it.” Article 14 establishes that “This basic law shall not be amended, unless by another basic law enacted by a majority of Knesset members.”
Thus, passage of this bill would make it very difficult to challenge the many problematic pieces of legislation outlined here. Indeed, one of the central risks associated with the proposed legislation is that it not only deepens exclusion of Arabs but also entrenches and normalizes it.
The provisions established by the bill and their emphasis on the Jewishness of the state, are in contradiction to fundamental and accepted rights internationally — primarily equality and non-discrimination — as central to all citizens within democracies. On the domestic level, the proposed Basic Law: Israel is the Nation State of the Jewish People would further threaten the legal and social standing of Israel’s indigenous Palestinian minority. Currently, Israel is defined as a “Jewish and Democratic” state. Passage of this law, however, would make the democratic element subservient to the Jewish element. As such, it would divide Israeli citizens into two groups: first class citizens (the Jewish majority) who are fully recognized in the definition of the state and its laws and enjoy recognition of their individual and collective legal rights, and second or third class citizens who are excluded nationally. The Arab minority would find itself in a constitutionally established and supported position of disadvantage. With the passage of this law, the government would not be able to hide behind the pretense of equality. Furthermore, giving the green light to constitutionally sanctioned discrimination would represent a deathblow to Arab-Palestinians’ civil and constitutional rights. Pre-existing Israeli legislation has already codified the unequal status of the groups; constitutional backing would make Arab-Palestinians’ status even more precarious.
Importantly, the bill promotes the collective rights of the Jewish majority without granting the same rights to the Arab-Palestinian indigenous national minority. The proposal conflicts with current trends in international law that increasingly recognize the unique rights of both national and indigenous groups. As such, the bill consolidates a hierarchy that gives preference to the majority over the minority, creating a group-based ethnic classification — and Jewish formal superiority — that reflects a common dualism in Israeli legislation in general, and constitutional law specifically, in all manner of rights pertaining to Arab-Palestinians: a collective approach for Jews and an individualistic approach for non-Jews. This dangerous bill would more firmly entrench these norms within Israeli society, creating serious barriers to overcoming them. Thus, its passage will exacerbate ongoing exclusion, increase feelings of alienation, and deal a death blow to civil and democratic values.
See all of the previous essays and responses to the Forum here.