The following is an adapted excerpt from The Battle For Justice In Palestine. Copyright © 2014 by Ali Abunimah. Reprinted with permission of Haymarket Books, Chicago, IL. You can buy the book here.

Given the centrality of Israel’s claim, the question of whether Israel does indeed have a “right to exist as a Jewish state” deserves serious consideration. A useful lens through which to examine this proposition is the foundational legal maxim I cited at the beginning of this chapter. Put in simple terms, if a person bears a right, then there must be some venue—usually a court of law—where she can seek to have that right enforced, to have a penalty imposed on the violator, or to obtain some other form of legal relief. [1] In the formulation of the eighteenth-century jurist William Blackstone, “It is a settled and invariable principle in the laws of England, that every right when with-held must have a remedy, and every injury its proper redress.” His insertion of the word proper reminds us that a remedy must be lawful and equitable. If my neighbor cuts down my tree, a proper remedy might include paying damages to me, replacing the tree, and perhaps some restraining order to prevent him from felling other trees. It would not be a proper remedy for me to vengefully cut down my neighbor’s trees, demolish his house, or kill his children.

Let us accept, for the sake of argument, that Israel has a “right to exist as a Jewish state”—or to maintain its “Jewish character” or “Jewish and democratic character,” to use other common formulations—and that this means in practice that Israel has a right to maintain a Jewish demographic majority. Let us also leave aside for now the fact that the Jewish majority within Israel’s pre-1967 boundaries was created when Zionist militias, and later Israel, expelled most of the indigenous Palestinian population in 1947 and 1948 and then prevented their return.

First, how can Israel’s right to maintain a Jewish majority be violated and by whom, and by what means can Israel enforce it? There are three groups of Palestinians, broadly speaking, who represent a threat to Israel’s right to exist as a Jewish state: Palestinian refugees in exile, Palestinian citizens of Israel, and Palestinians in the occupied West Bank and Gaza Strip. (There are also citizens of Syria still living in the occupied Golan Heights.) Palestinian refugees could violate the right by returning home in sufficient numbers that the Jewish majority disappeared. The straightforward remedy Israel constantly demands is that the right of return be abrogated. But even if Palestinian refugees waived their rights and not a single one returned, this would be insufficient to protect Israel’s right to exist as a Jewish state for very long against an even more imminent threat from Palestinians already living in territories controlled by Israel. Palestinian citizens of Israel and Palestinians in

the occupied territories together comprise half the population living under Israeli rule. Simply put, Palestinian parents are trampling all over Israel’s right to maintain a Jewish majority by having children, and their babies, by virtue of not being born to Jewish parents, are violating Israel’s right merely by living and breathing. Israelis themselves see the births of non-Jewish babies—whether to Palestinian citizens of the state or in the occupied territories –—as an assault on their rights and on the very existence of Israel. The routine use by politicians and media of the term “demographic threat” to describe these babies attests to this phenomenon. [2] “The most pungent expression of this fear,” David Hirst reminds us, came from Golda Meir, who was Israeli prime minister in the 1970s. “The Palestinians’ birth-rate was so much higher than the Jews’ that her sleep was often disturbed, she would say, at the thought of how many Arab babies had been born in the night.” [3] But the threat comes not only from Arab babies. Non-Jewish African refugees, asylum seekers, and other migrants are also violating Israel’s right to be Jewish by living in the country and reproducing.

Now that we have identified the principal violators of Israel’s right to exist as a Jewish state and the injury they are causing to Israel merely by procreating, we must ask what remedies Israel could seek and whether any of them is proper. As noted, the “threat” from Palestinian refugees is dealt with by abrogating their right of return. But what about Palestinian citizens of Israel and Palestinians in the West Bank and Gaza Strip, who would remain uncontrolled violators? The remedies at Israel’s disposal would have to include physical and/or political measures to reverse and prevent further violations of its right to exist as a Jewish state. In theory, these could include the expulsion of Palestinians, a step that would serve the dual purpose of reducing their existing numbers and eliminating the risk of future violations by Palestinian babies who might be born to those expelled. Failing that, Israel could issue restraining orders against Palestinian parents to limit the number of children they are permitted to have or engage in other practices designed to deter the births of Palestinians and encourage those of Jews. Similar measures could be used against other non-Jewish violators as well. Among political or legal measures, Israel could punish and prevent violations by stripping Palestinian citizens of Israel of their right to vote or by maintaining a separate regime for Palestinians in Israel and in the occupied territories that allows Jews to get on with running the country without any challenge to their power and control of resources. These are measures that flow naturally from the assertion that Israel has a right to exist as a Jewish state, yet it is impossible to think of one that does not do outrageous violence to basic principles of human rights, equality, and antiracism. Yet many of these noxious ideas are already in place or being advocated in Israel.

In the last decade, Israel has stepped up measures to curtail non-Jews’ right to family life in order to keep their numbers down. In 2003, Israel introduced “temporary” emergency amendments to its Nationality and Entry into Israel Law—renewed every year since by the Knesset—that deny residency or citizenship to Palestinians from the occupied West Bank or Gaza Strip who marry Israeli citizens. The law was broadened in 2007 to include citizens of Iran, Iraq, Syria, and Lebanon, so-called enemy states. [4] Adalah, a legal advocacy group for the rights of Palestinian citizens of Israel, observed that the law was unlike any that existed “in any democratic state in the world, depriving citizens from maintaining a family life in Israel only on the basis of the ethnicity or national belonging of their spouse.” [5] Israel justified the law nominally on the grounds of “security,” an excuse dismissed by Human Rights Watch, which said the “sweeping ban” without “any individual assessments of whether the person in question could threaten security, is unjustified” and “imposes severely disproportionate harm on the right of Palestinians and Israeli citizens to live with their families.” The discrimination in the law could be measured “by its effects on Palestinian citizens of Israel as opposed to Jewish citizens,” it noted. [6] Then–prime minister Ariel Sharon admitted the true purpose of the law in 2005 when its renewal was under debate. “There is no need to hide behind security arguments,” Sharon said. “There is a need for the existence of a Jewish state.” [7]

The demographic purpose of the law was reaffirmed in 2012 when the Israeli Supreme Court threw out Adalah’s challenge. “Human rights are not a prescription for national suicide,” wrote Judge Asher Grunis for the 6–5 majority. Effectively endorsing demographic gerrymandering, the court’s ruling added that “the right to a family life does not necessarily have to be realized within the borders of Israel.” [8] I’m reminded of a young man I met in South Africa in 2010 who was born in Transkei— one of the now-defunct, nominally independent Black “homelands” set up by the former apartheid government—because his parents had to move there from Johannesburg for violating South Africa’s prohibition on mixed marriages. Those policies were justified by South African rulers in the same terms used by Israel’s highest court today, as when Prime Minister Daniel Malan said in 1953 that “equality . . . must inevitably mean to white South Africa nothing less than national suicide.” [9]

With this and another ruling legitimizing the pillage of natural resources from the occupied West Bank by Israeli companies, “Israel’s highest court has veered seriously off course in serving as a final bastion for upholding human rights,” admonished Sarah Leah Whitson, Middle East director of Human Rights Watch. [10] But Whitson was mistaken. The court was very much steering an intentional path. In lieu of a written constitution, Israel has fourteen “basic laws” that establish various state institutions, upholding the privileges of Jews and some rights of non-Jews while violating the rights of others. An important example is the 1980 Basic Law: Jerusalem, Capital of Israel, which purports to annex eastern occupied Jerusalem in direct violation of international law and against the will of Jerusalem’s legitimate residents. [11] None of Israel’s basic laws is a bill of rights, but in 1992 the Knesset passed the Basic Law: Human Dignity and Liberty. [12] This law “appears on its surface to offer protection for all Israeli citizens, but in reality, the text is quite troubling for the Palestinian minority,” observes Ben White, author of Palestinians in Israel: Segregation, Discrimination and Democracy. [13] Section Eight of the Basic Law reads, “There shall be no violation of the rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than required.” These “values” can be found right at the beginning of the law, which begins: “The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.” The inclusion of the words “Jewish and democratic” open the door to all the forms of legal discrimination that the Israeli government has long practiced, often with the court’s blessing. The Basic Law is rendered hollower by its final clause, which allows for the rights it protects to be denied or restricted “when a state of emergency exists.” A declared “state of emergency,” renewed annually by the Knesset, has existed since 1948. Under this pretext, Israeli authorities have systematically violated the rights of Palestinian citizens of Israel, including banning individuals from travel and seizing vast tracts of land, without compensation, for the exclusive use of Jews.

These policies must not be seen as aberrations—or “veering off”—but as part of the foundational logic that Israel has a right to exist as a Jewish state. Whereas in most countries—and certainly in any that claim to be democratic—rights accrue to citizens without discrimination, Israel makes a fundamental distinction between citizenship and nationality. Rights are allocated on the basis of latter, not the former, with “Jewish” nationality enjoying privileged status. Over the years, several Israeli citizens have petitioned the high court unsuccessfully to have the official registration of their nationalities changed from “Jewish” to “Israeli.” But the court ruled in the 1970s that “there is no Israeli nation separate from the Jewish nation.” [14] In 2013, the Israeli Supreme Court rejected the latest attempt by a group of Jewish citizens to have their nationality recorded in the population registry as “Israeli.” The court ruled that such a change would undermine Israel’s “Jewish character.” [15]

From its earliest years, Israel’s laws have disenfranchised Palestinians and privileged Jews in a variety of ways. The 1953 nationality law, for instance, deprived 750,000 Palestinian refugees of citizenship in the state that had been established on the ruins of their homeland and canceled their Palestinian citizenship, which had been recognized by the British mandatory authorities in 1925. [16] But even many of the Palestinians who remained behind in what became Israel had to seek “naturalization” actively and swear an oath of loyalty to the Jewish state. Many were denied citizenship and expelled. The Absentees’ Property Law was used to confiscate the land and real property not only of refugees but also of Palestinian citizens of Israel, who were given the Orwellian designation of “present absentees.” [17] Much of their land was handed over to the quasi-official Jewish National Fund, which administers and allocates it on an openly discriminatory basis not to Israeli citizens, but specifically to Jews. [18] Meanwhile, as Palestinians were being denationalized and dispossessed, Jews from anywhere could claim Israeli citizenship the moment they set foot in the country under the discriminatory Law of Return.

Even though the law is plainly designed to exclude indigenous Palestinians and prevent the return of refugees while attracting Jewish settlers, Zionists sometimes defend the Law of Return on the grounds that other countries, such as Ireland, grant citizenship through descent to persons born abroad. [19] Such arguments take for granted that a transhistorical entity called “the Jewish people” is the indisputable natural owner and claimant of the country, analogous to that of continuously present, stable populations in other countries (except of course for Palestinians, whose continuous presence is denied or dismissed as irrelevant). [20] But even if we accept that claim, for the sake of argument, there are fundamental differences. The Republic of Ireland grants citizenship to any person born abroad if that person has at least one grandparent who was born anywhere on the island of Ireland, whether in the Republic or in the British-ruled north. [21] This certainly means that many persons in the global diaspora who identify with an Irish Celtic or Irish Catholic cultural heritage are eligible to “return” to Ireland. But this is no analogy to Israel’s Law of Return. The Irish law, unlike Israel’s Law of Return, contains no conditions that beneficiaries must belong to a specific cultural, ethno-national, or religious group. The law applies the same way for persons of Irish Catholic descent as it does to those descended from Protestants whose ancestors arrived with English-Scottish colonialism, as well as to people whose ancestors might have immigrated to Ireland from anywhere else in the world. A better analogy for the Law of Return would be the White Australia policy that operated until the 1970s, favoring immigration from Europe while non-European immigrants and Aborigines faced appalling official racism and the continuing legacy of colonialism and land loss.

Some liberal Zionists have argued that the discrimination that pervades every aspect of the lives of Palestinian citizens of Israel consists of unfortunate and rectifiable abuses that are not inherently necessary to defend Israel’s “right to exist as a Jewish state.” As Tikva Honig-Parnass observes, “Most Zionist Left intellectuals share the conviction that Palestinians in Israel should be denied the rights that embody and sustain the national identity and existence of Jews. The intellectuals agree that Palestinians should instead be granted ‘civic equality’—namely, equal access to funds from local Palestinian municipalities or public institutions, and equal funding for religious, educational and welfare services.” [22] But in practice it has proven utterly futile to make a distinction between privileged “national” rights belonging to Jews collectively, on the one hand, and, on the other, “civic” rights to be enjoyed equally by every citizen, including Arabs. In reality, many individual rights in Israel are directly tied to ethno-religious identity. Israeli leaders have consequently always viewed restricting the basic rights and spatial existence of Palestinian citizens within the state as a fundamental necessity to extend and maintain Jewish political and territorial control.

Since Israel’s founding, no Arab party has ever been invited to join a government, a near-total exclusion from political decision-making that is still supported by two-thirds of Israeli Jews. [23] Israeli politicians frequently talk about various decisions, especially those related to the “peace process” or Israel’s “Jewish character,” as requiring a parliamentary majority among Zionist (read Jewish) parties if they are to have political and social legitimacy. There have, moreover, been repeated attempts to ban parties representing Palestinian citizens of Israel from even being in the Knesset. In 2009, for instance, the Knesset Central Elections Committee voted to ban two Arab parties from running in that year’s elections, a decision later overturned by the high court. But the reason for the ban, according to its sponsors, was that the parties—and representatives such as Haneen Zoabi—had displayed “disloyalty” to the state. [24]

From 1948 until 1966 Palestinian citizens of Israel lived under military government, and in these years vast tracts of land were taken from them. Israeli leaders did not hide the fact that military rule was a mechanism for dispossessing Palestinian citizens of their land so that it could be given to Jews. Shimon Peres, deputy defense minister in 1962, explained that it was only thanks to the military government’s repressive powers that “we can directly continue the struggle for Jewish settlement and Jewish immigration.” [25] Israel’s first prime minister, David Ben-Gurion, stated that “the military government came into existence to protect the right of Jewish settlement in all parts of the state.” [26] The rights of non-Jews were simply not a factor. Even after military rule was formally ended, land expropriations without compensation from Palestinians did not stop. In 1976, major land confiscations in the Galilee sparked marches and a general strike that Israeli authorities met with lethal violence. Those protests, and the police killing of six Palestinian citizens of Israel, are commemorated annually on March 30 by Palestinians everywhere as Land Day. [27]

Little seems to have changed in the outlook of Israeli and Zionist officials charged with implementing policies designed to transfer land from Palestinians to Jews. “David Ben-Gurion once said that if we fail to settle the Negev, we will lose Tel Aviv,” Efi Stenzler, chair of the Jewish National Fund, which actively assists the government’s forced removal of Palestinian Bedouins, told donors at a 2012 fundraiser in Florida. “Today, we know how right he was.” [28] Similarly, in 2009, housing minister Ariel Atias declared that it was “a national duty to prevent the spread of a population that, to say the least, does not love the state of Israel.” He was speaking about Palestinian citizens of Israel. “If we go on like we have until now, we will lose the Galilee,” Atias warned, adding, “Populations that should not mix are spreading there. I don’t think that it is appropriate [for them] to live together.” [29] If we follow Atias’s logic, then legislation equivalent to the US Fair Housing Act (1968), part of the civil rights–era reforms ending racial segregation, would lead to the disintegration of Israel. This passionate commitment to Jewish domination of the land and ethnic segregation of the population was further entrenched in 2011 when the Knesset passed a law formalizing “admissions committees” in hundreds of Jewish towns with the right to exclude potential residents who do not meet vague suitability criteria. Human Rights Watch denounced the committees, with seats reserved for officials from the Jewish Agency or World Zionist Organization, as a form of “officially sanctioned discrimination” intended to keep Arabs out. [30]

Prominent local officials have argued that leaving Palestinians to live their lives could be a major threat to the territorial integrity of the Jewish state. Shimon Gapso, the mayor of Upper Nazareth, angrily rejected a request to open the first school for the 1,900 children of the city’s Arab population—one-fifth of its fifty-two thousand residents—as a “provocative nationalist statement.” Explaining his refusal, Gapso insisted, “Upper Nazareth was founded to make the Galilee Jewish and must preserve this role.” [31] Gapso could argue with some justification that he was only fulfilling the vision of Israel’s founders. His town was built on heights overlooking the Palestinian city of Nazareth on the orders of Ben-Gurion and Peres. Ben-Gurion was “outraged by the presence of so many ‘Arabs’ in the Galilee when he toured the region in 1953.” In 1948, he had already warned, “We have liberated the Galilee and the Negev. It is not enough to expel the foreign invader”—his description of the indigenous Palestinians—“we have to replace him with the Hebrew settlers.” [32] But over the decades, as the predominantly Palestinian town of Nazareth has been allocated little space to grow, Arab families have moved to Upper Nazareth. Gapso seized on protests by Palestinian citizens during Israel’s November 2012 air bombardment of Gaza to urge the government to declare neighboring Nazareth a “hostile” city. “If it was in my hands, I would evacuate from this city its residents, the haters of Israel whose rightful place is in Gaza and not here,” Gapso wrote in a letter to the interior minister. [33] As he ran for re-election in 2013, Gapso defended his policies in a Haaretz op-ed with the refreshingly honest headline “If You Think I’m Racist, Then Israel Is a Racist State.” Gapso made the case that in a country with “racially pure kibbutzim without a single Arab member and an army that protects a certain racial strain” as well as “political parties that proudly bear racist names” and “even our racist national anthem [that] ignores the existence of the Arab minority,” it was sheer “hypocrisy and bleeding-heart sanctimoniousness” for liberals in Tel Aviv to pick on his city as racist. The mayor cited the Bible, in which, he said, “the God of Israel told Moses how to act upon conquering the land: he must cleanse the land of its current inhabitants.” [34] Gapso was re-elected by a landslide.

Gapso was perhaps being unfair to Tel Aviv, however, where he has his fair share of emulators. Tel Aviv deputy mayor Arnon Giladi, for instance, led his Likud party’s 2013 municipal election campaign with a promise to “silence” the remaining mosques in Jaffa. Once the Palestinian cultural and commercial capital, the vast majority of Jaffa’s population was forced to flee by sea as Zionist militias invaded and occupied the city in April 1948. Alarmed by the fact that a few thousand Palestinians were hanging onto their way of life and their religious practices in the city—now annexed to the Tel Aviv municipality—Giladi warned, “It is not possible that only a few kilometers from the center of town there will be a Palestinian nationalist autonomy that alienates itself from the values of the State of Israel.” He promised that his party would “act to correct this situation and crystallize a national plan that will guarantee that Jaffa will remain a part of the State of Israel and also have a Jewish character.” [35] In recent years Jaffa’s remaining Palestinians have struggled against gentrification calculated to displace them for the benefit of wealthier Jewish newcomers. [36]

The close connection between the need to repress the political aspirations and rights of Palestinian citizens, on the one hand, and Israel’s “right to exist as a Jewish state,” on the other, was expressed by Haaretz columnist Israel Harel in 2008 when he warned Israeli leaders against recognizing Kosovo, the province of Serbia that seceded under NATO tutelage in 2008. Harel, a founder and influential leader of the council representing Israeli settlers in the West Bank and Gaza, was worried about the precedent. “Kosovo’s declaration of independence has sparked concern in certain circles in Israel,” he wrote. [37] “The day may not be far off when the Arabs of Galilee start clamoring for political independence too.” Comparing the two cases, Harel asserted that “the Muslims of Kosovo constitute an absolute majority of the population, and the same is true for the Galilee Arabs,” his term for Palestinian citizens of Israel. “Quite a few Jews have been leaving the Galilee . . . and not many are joining the sparse Jewish population there, despite an array of financial incentives.” The consequence of allowing Palestinian citizens to exercise rights or express their cultural and political identity freely would be to put the very existence of Israel at risk: “Unlike the Kosovars in the Balkans, who are satisfied with their separatist province and do not claim ownership over all Serbian territory, the Arabs of the Galilee, and certainly the northern wing of the Islamic Movement, claim ownership—political and territorial—over all of Israel.” Harel compared each additional right that might be granted to Palestinian citizens to allowing them to cut off another slice of salami. Soon, before Israel knew it, he warned, the Arabs would have swallowed the whole Zionist state.

Even the grossly inadequate budgets for education and public services allocated to Arab communities in Israel are closely tied to the effort to preserve the “Jewishness” of the state. Benjamin Netanyahu expressed the dilemma best when he observed in 2003, “If there is a demographic problem, and there is, it is with the Israeli Arabs who will remain Israeli citizens.” [38] If they were to “become well integrated and reach 35–40 percent of the population, there will no longer be a Jewish state but a bi-national one,” Netanyahu, who was then finance minister, explained, according to Haaretz. “But, if Arabs remain at 20 percent but relations are tense and violent, this will also harm the state’s democratic fabric.” Therefore, Netanyahu concluded, “a policy is needed that will balance the two.” He also praised the separation wall Israel built in the West Bank, saying it would prevent a “demographic spillover.” From the record of every Israeli government, including those headed by Netanyahu, it would appear that decent schools for Palestinian citizens, sufficient land for housing and development, a fair shot at employment, a role in government and national decision-making, and national symbols that foster inclusion could all cause too much integration and therefore present an existential threat to the Jewish character of Israel.

The cumulative impact of Israeli policies deemed necessary to protect Israel’s right to exist as a Jewish state can be seen in the yawning gulf that exists between Jewish and Palestinian citizens. Sikkuy, an Israeli organization that monitors inequality, found that in four of the five areas it surveys for its periodic Equality Index— health, housing, education, employment, and social welfare—there had been a “distressing increase” in inequality between Jewish and Arab citizens from 2006 to 2009. [39] The only exception was in education, where there was a slight decrease in inequality, although gaps remained large. [40] Jews live on average four years longer than Palestinian citizens of Israel; that gap had widened. Infant mortality among Palestinian citizens, at 7.7 per thousand live births, is two and half times the rate for Jewish babies. Among one- to four-year-olds, the mortality rate among Arab boys is three and a half times higher than for Jewish boys. [41]

Notes