May 15, 2017 - Israel’s prospective nation-state law

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Yossi Alpher is an independent security analyst. He is the former director of the Jaffee Center for Strategic Studies at Tel Aviv University, a former senior official with the Mossad, and a former IDF intelligence officer. Views and positions expressed here are those of the writer, and do not necessarily represent APN's views and policy positions.

This week, Alpher discusses the prospective "nation-state law" that the Israeli Cabinet’s Ministerial Committee on Legislation submitted to the Knesset last week; why the law is surfacing again now; the law's proposed components; differences in the alternative versions that have been proposed; and whether Israel really needs this law.

 

Q. Last week the Israeli Cabinet’s Ministerial Committee on Legislation submitted to the Knesset a “nation-state law”. The Knesset approved it on first reading and sent it to committee. The political left and Israel’s Arab community are vehemently opposed. What is this about?

A. The idea is to define in a basic law that has constitutional status what the State of Israel constitutes at the symbolic level and how it should conduct itself on issues like the balance between religion and state and the status of its Palestinian Arab minority. The version of the law just given preliminary approval was drafted by MK Avi Dichter, currently of the Likud but previously, when the law was first conceived, in Ariel Sharon’s short-lived Kadima party, where Tzipi Livni supported it too. Dichter is a former head of the General Security Service and is generally considered to be among Likud moderates. Livni is today allied with Labor, which opposes the law.

 

Q. Why is the law surfacing again now? Is this connected to the Trump visit?

A. One theory espoused by Netanyahu watchers is that he is offering up the law as a nationalist sop to the extremists in his coalition. They are unhappy that Netanyahu has frozen all new settlement activity to avoid embarrassment during the visit. Netanyahu also wants to dispel any lingering doubts among his constituency over his nationalist credentials with regard to the Trump proposal to move the US embassy to Jerusalem.

Secretary of State Tillerson has hinted that Netanyahu would prefer not to deal right now with the Jerusalem embassy issue. This is presumably because the embassy move would bring down the wrath of the Arab world on Israel at a time when Israel-Arab coordination against Iran and ISIS takes priority. Netanyahu has apparently also accepted that moving the embassy at this time would not correspond with President Trump’s anticipated peace initiative, which will presumably require Arab state participation. So the nation-state law offers an opportunity for Netanyahu to display alternative patriotic leadership while he dutifully pays lip service to the idea of the embassy move.

On the other hand, the law’s nationalistic overtones and seeming discrimination against Israeli Arab citizens would hardly appear to be the signal Israel wants to send on the eve of a presidential visit in which Trump wants to advance an Israeli-Palestinian “ultimate deal”.

 

Q. The law hasn’t been passed and is almost certain to be altered in committee. Its sponsors talk about a two month interval. There are a number of alternative proposals, some more and some less moderate. So why discuss this now?

A. The law that is eventually passed, or the possibility that no law will be passed, says a great deal about the influence of extreme nationalist and religious agitation on the Israeli political scene. So whatever happens, it’s worth taking a look now at its proposed components.

 

Q. Let’s start with the most obvious. The bill says that Israel “is the national home of the Jewish people” and that “the right to the realization of national self-determination in the State of Israel is unique to the Jewish people”.

A. This is ostensibly a moderate and accurate definition of what Israel is about for Jews. The United Nations created Israel in 1947 (UNGAR 181) as a “Jewish state”. Israel’s Declaration of Independence followed suit and used the term Jewish state, if only to establish the new state’s legitimacy under international law. But “national home of the Jewish people” is a secular definition; “Jewish state” can be construed to have religious content. That may be one reason Israel’s ultra-Orthodox political parties are not sure they can support the bill. (They oppose basic laws in general because they have difficulty coming to terms with the very notion of Jewish sovereignty.) Arab citizens of Israel would point out that even this secular definition leaves them out entirely.

As Israel expands its grip over East Jerusalem and the West Bank with their large Palestinian majority, the “national home” definition, without any mention of Israel’s borders, can be construed as laying the groundwork for annexing the territories with their millions of Palestinians. Haaretz’s lead editorial on May 8 views this issue in far-reaching terms: “Israel is interested in applying its sovereignty to the land but isn’t interested in annexing the Palestinians who live there as equal citizens in a single state. . . . The nation-state law is the constitutional cornerstone for apartheid in the entire Land of Israel.”

 

Q. What additional features in the proposed law reinforce this interpretation?

A. The bill states that “the national language is Hebrew”. In so doing, it strips Arabic of this status, compensating it with “a special status in the state”. It also threatens to downgrade Israeli civil law by suggesting that when courts cannot find legislative precedents for ruling on legal issues they may “make their rulings on the basis of the principles of freedom, justice, fairness and peace of the Jewish heritage”. That means “halacha” or Orthodox Jewish law, which can easily be interpreted to relegate non-Jews and women to secondary status. That and several other provisions lend themselves to the determination among some observers that this proposed basic law could be construed to prioritize the Jewish religion over Israeli democracy.

Then too, the law stipulates that “the state may allow a community, including members of the same religion or national origin, to have separate communal settlements.” This provision would enable Jewish communities to refuse to allow Arabs to move in. It would reverse a High Court ruling of several years ago that insisted that communities built on state land be open to all.

Interestingly, we encounter here a very one-sided reality. In a few cases, Arab families have bought homes in “Jewish” communities because the standard of living, particularly education, is better. Some Jewish residents have welcomed them, others have opposed the move. But almost no Jews have sought to live in Arab communities other than Jewish converts to Islam, and the general impression is that the Arab residents would oppose them vehemently.

The proposed bill would keep Arabs out of kibbutzim, moshavim and other small communities. Even though few Arabs have ever sought to reside as tiny minorities among Jews, the world would justifiably view this provision as racist. Incidentally, Jewish purists could theoretically invoke the law ad absurdum to expel the large Arab minorities of Tel Aviv-Yafo, Haifa and even Jerusalem.

Notably, the Israeli Arab community’s Knesset representatives do not object only to these provisions. Many of them, along with Arab intellectuals in Israel, insist that Israel should actually become a bi-national state. They would remove the word “Jewish” from any definition of Israel. They even object to the law’s definition of hatikva, the magen david flag and the menorah as the country’s official anthem, flag and symbol respectively.

This far-reaching position was first put forth in mainstream Israeli Arab documents and proposals more than a decade ago. It was apparently inspired by the PLO’s refusal to recognize Israel’s Jewish roots and nature in Oslo-based final status negotiations at Camp David in 2000. In final status negotiations the PLO has advocated positions regarding the Temple Mount and the right of return of 1948 refugees that clearly reflect a refusal to recognize Israel as the nation state of the Jewish people or a Jewish state.

It is the Israeli Arab leadership’s advocacy of this position which apparently provoked initial attempts to pass a nation-state law. Dichter, a former head of the General Security Service, is presumably particularly aware of both the bi-nationalist drift in the position of the Palestinian Arab leadership in Israel and the implications of the Palestinian negotiating position in final-status talks.

But here it is important to point out that a majority of Israel’s Arab citizens to not endorse their leaders’ demands; polls consistently show they would suffice with genuinely equal civil and economic status in a Jewish state. Sadly, by downgrading the Arabic language and barring Arabs from residing in Jews-only communities, the proposed bill moves in the opposite direction and alienates the Arab citizens of Israel even further. Indeed, the anthem, national flag and symbol were defined years ago by the Knesset, rendering the current proposal in this regard superfluous.

 

Q. What distinguishes the alternative versions that have been proposed?

A. Some, like that of MK Benny Begin, are more secular in nature and could be supported by parties of the center-left like Labor. Others, emanating from the right, would overtly subjugate democratic principles to Israel’s Jewish identity. Interestingly, when PM Netanyahu presented the Dichter version to the Knesset he avoided mention of any of the more controversial provisions, leading some observers to speculate that he may ultimately favor the Begin version.

 

Q. Does Israel need this law?

A. Advocates of the law insist that Israel has a right to define itself like other nations: Croatia is the nation-state of the Croatian people and Germany the nation-state of the German people. They ignore a number of facts that make Israel very different.

For one, Israel has already defined itself. It is “Jewish and democratic”. Israel’s own Declaration of Independence and a number of prior basic laws contain all the necessary definitions.

Then too, the ultimate status of Israel’s Palestinian Arab minority is dependent on the way Israel solves, or doesn’t solve, the entire Palestinian issue and on the way a Palestinian state, if it emerges, defines itself. There is no comparable situation elsewhere among the nations.

Further, the entire religion and state issue in Israel is rendered complicated by the fact that Jews are both a people and a religion. There is no German or Croatian religion; the closest comparison is Greece and its official Greek Orthodox Church. In most countries, law takes absolute priority over religion. That is the way it should be in Israel. But it is not. In Israel all aspects of personal law (marriage, divorce) are religious. And most versions of the proposed law would weaken even further the superior status of civil law.

 

Q. The bottom line?

A. What began as a centrist (Kadima, Tzipi Livni) response to extreme Palestinian positions has, in the spirit of Israel’s decade-long political and cultural drift toward right-religious ideology, become a means for the increasingly messianist pro-settler mainstream to wave the flag and mold Israel in its disastrous image. That includes the demands Israel will put on the table in any future negotiations with the Palestinians.

Ultimately, this law is so controversial in so many directions that it may once again be shelved, with or without a vote. Certainly its content will change in one direction or another. The law’s fate, indeed its very existence, should be understood as a kind of weathervane pointing to the direction Israel is heading.

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