One Nation, Divided Under Law

Now that Israeli elections are scheduled for March of next year, the current Jewish nationality law making its way through Knesset committees and the cabinet in Israel won’t come up for a vote. And I’m betting that it never will. The last thing a new and almost certainly delicately balanced israeli government will want is to open up is this can of worms.

But if this effort to define Israel as a Jewish state (again) does become law, it’s likely to consecrate, codify, and make even more permanent two already deeply entrenched realities rather than to revolutionize Israel’s politics. First, Israel is already a Jewish state, and second, from the perspective of its Arab citizens, it’s a state that’s already seen as a preferential rather than full democracy. And passage of this gratuitous and provocative new law will only widen the growing and still irreconcilable gap between the two.

The current president of Israel, Reuven Rivlin, strongly opposes the bill. Former President Shimon Peres blasted the proposed legislation, arguing that it will “damage the country both at home and abroad and it will erode the democratic principles of the State of Israel.” One Israeli pundit decried it as “legal preparation for … [the] establishment of the Jewish apartheid state.” A Hebrew University historian compared it to European nationality laws passed during the 1930s and, on Nov. 24, the New York Times editorial board opined that “any measure that claims a pre-eminent status for Jews can only add fuel to the fire.”

The “it” in this case is the proposed “Israel as the Nation State of the Jewish People” law. That bill or some variation of it has been around for quite a while, including in an earlier form proposed by coalition chairman Zeev Elkin (Likud), who originally introduced it in 2011 along with then-Kadima MK Avi Dichter.

But now in the highly charged world of Israel’s political right, it’s made its biggest advances to date in the effort to enshrine Israel’s Jewish identity, as one of its Basic Laws that provide the foundation for the country’s legal and political system in the absence of a formal constitution, which Israel does not have. The bill’s defenders (among them Israeli Prime Minister Bibi Netanyahu) maintain that it states the obvious, is long overdue, and is also essential to making clear to the Arab world (and the Palestinians in particular) that there can be no right of return for Palestinians into Israel proper.

On the other side, the bill’s critics (including the Israeli president and Yair Lapid, the head of one of Netanyahu’s most important coalition partners) believe it risks severely damaging Israel’s democratic character and that it will alienate Israel’s Arab citizens, diminish the rights of non-Jewish Israelis, and even provoke violence. And the final danger lies directly in the bill’s aspiring to be a Basic Law, meaning it can only be amended by an absolute majority of the Knesset.

But if you strip away all the shouting and aforementioned talking points, what you discover is a mix of ideology and domestic politics, particularly the prime minister’s use of the bill to strengthen his position in the Likud and among the right wing. The legislation is contrived, gratuitous, and dangerous. And here’s why.

First, a news flash: Israel has been a Jewish state since independence and remains one today. The United Nations General Assembly resolution to partition Palestine in November 1947 called for the establishment of a “Jewish State.” And this wasn’t the Israeli government talking but the U.N. Israel’s own Declaration of Independence “hereby declare[d] the establishment of a Jewish state in Eretz-Israel, to be known as the State of Israel.” Some claim, perhaps correctly, that this declaration was never ratified as law. But two existing Basic Laws from 1992 and 1994 (Freedom of Occupation; and Human Dignity and Liberty) clearly state that Israel is a “Jewish and democratic state.”

But put aside the legal sanction and consider the practical realities and the view of the revisionist’s revisionist, Vladimir Jabotinsky — no moderate when it came to these matters. “I do not believe that the constitution of any state should contain special clauses guaranteeing its ‘national’ character,” he said in 1958. “The natural and best way is for the ‘national’ character of a state to be ensured by the very fact that it has a particular majority.” And, as if taking its cue from the Zionist leader, that’s just what the Israelis have done.

It’s a Jewish state not just through declarations but through deeds as well. History, tradition, law, symbols, and practice anchor Israel’s Jewish nation-state identity through its ancient biblical connections; centuries of exilotic longing; a Law of Return; a national anthem that puts a return to Jewish Zion upfront; a flag that depicts a Jewish prayer shawl and star of David; a Hebrew language unique to only one nation-state; and, above all, as Jabotinsky had hoped, a population of 8 million, 6 million-plus of whom are Jews. It’s hard to believe that despite the secular character of Israel that aliens arriving in Tel Aviv wouldn’t quickly realize that they had landed in a distinct nation-state run by Jewish Israelis.

Why, then, is pushing the Jewish state issue critical to making a point to the world and the Middle East in particular? There is some perceptible logic in making sure as part of any peace deal that the Arab world and Palestinians come to terms with the reality of 1948 Israel, not just 1967. I get the fact that if the Arabs would accept the fact that Israel is a Jewish state then they couldn’t claim any part of pre-1967 Israel part of a yet-to-be-created Palestinian state. Indeed, that recognition will almost certainly need to be part of a conflict-ending agreement with the Palestinians and the Arabs too, should there be one.

But today, in these circumstances, it seems needless and gratuitous. There is no peace process or prospect of a deal. And this kind of search for external validation seems to make Israel a weak demandeur and infantilizes the Israelis by creating the impression that it’s up to others to help shape Israel’s own identity.

Second, by implication and as a practical matter too, Israel’s character as a Jewish state has created another reality. Whatever the drafters of Israel’s Declaration of Independence or the Basic Laws aspired to or intended in the way of making Israel a full-fledged democracy for all its citizens, Israel has been and remains instead what I’d call a preferential democracy. You can slice it any way you want, but Israel’s 1.6 million Arab citizens (Arab-Israelis, Israeli-Arabs, Palestinian citizens of Israel), though promised equality under the law, just aren’t equal to Israeli Jews. I’ve argued this out many times with Israelis. What do you mean they’re not equal? They can vote, are represented in Parliament, and are even in the government. All true.

And yet a series of laws (most notably the Law of Return and the 1952 Citizenship Law) explicitly favor Israeli Jews. Other administrative rules and regulations give preference to Jewish and Zionist organizations in matters relating to access to land and housing. Then there is systemic, institutional, and societal discrimination that simply does not ensure equal allocation of state budgets and symmetrical benefits to Arab and Jewish communities. The clear absence of a shared public square where Israeli Jews and Arabs can participate equally and take pride in the symbols of the state — national anthem, flag, state holidays — can only reinforce a sense of isolation and separation. That Israeli Arabs may well enjoy more rights than citizens of many Arab countries and would likely not choose to live elsewhere, including in a putative state of Palestine on the West Bank and Gaza, are often arguments used to rationalize their second-class status. But these arguments really don’t work. If you are a real democracy then you make a determined commitment to try to be one, and that means doing everything possible to ensure that all citizens of the stare are treated equally in a de jure and de facto manner too.

Third, Israel has made no truly sustained effort to reconcile its Jewish character with its democratic one, at least for its Arab citizens. Arabs in Israel will tell you that the last Israeli prime minister to take their concerns seriously was Yitzhak Rabin. And that was short-lived. There may be all kinds of extenuating circumstances, including legitimate security requirements and the conflict with the Arab states and the Palestinians. But the problem of Israel’s national minority has gone largely unattended. Perhaps this should come as no surprise given the challenges and complexities of integrating much of Israel’s ultra-Orthodox community into the state and into national service.

Two intifadas, the shooting of Arab citizens in 2000 by Israeli police, and the disappointment that followed Israel’s official state committee’s investigation that made recommendations that were never implemented, the impasse in the peace process, and many Arab citizens’ growing identification with Palestinian nationalism and Islamist militancy have all exacerbated tensions too.

Israel is a relatively young country. If you looked at the United States in 1830, roughly 60 years after independence, you would have found a nation where women couldn’t vote (and many white males, too), blacks were slaves, and native Americans’ lands were seized and tribes forcibly relocated. In a way, Israel’s situation was much closer to America’s in the 1950s, when millions of African-Americans suffered de facto and de jure discrimination. So it’s critically important to give maturing democracies an opportunity to deal with inequalities and discriminatory policies. After all, it took America a full century and half, a civil war, and a bitterly contested civil rights movement to reconcile the promise contained in the Declaration of Independence with the reality that our Constitution validated chattel slavery. And by the looks of Ferguson, Missouri, we still have a ways to go before eliminating the patterns of racial discrimination in our system.

Israel isn’t America. And the position of Israeli-Arabs is quite different from that of African-Americans in the 21st-century United States. They are a national minority in an ongoing conflict with Palestinians and the Arab world, and an increasingly unhappy and potentially radicalized minority within Israeli society too, often mistrusted and even feared.

In fact, Israel has two Palestinian problems: one on the West Bank, Gaza, and Jerusalem and a second with its own Arab citizens. And at the moment the Israelis don’t have a clue about how to deal with either one. That would argue strongly for doing very little to risk aggravating Israeli Arabs who actually want to be loyal and full citizens of Israel. And practically speaking, this is why Israel should shelve the nationality law. Instead, it should concentrate its efforts on trying to improve the lot and status of its Arab citizens who might very well be willing to live in an Israel that is in fact a Jewish state, and a state for all its non-Jewish citizens too.

Getty Images/KENZO TRIBOUILLARD