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Expanding the Space(S)”: Thoughts on Law, Nationalism and Humanism – Following the Bishara Case1

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Expanding the Space(S)”: Thoughts on Law, Nationalism and Humanism – Following the Bishara Case1 “Expanding the Space(s)”: Thoughts on Law, Nationalism and Humanism – Following the Bishara Case1 Barak Medina and Ilan Saban In February 2006, the Supreme Court of Israel majority of members of the Arab minority ruled that Azmi Bishara, a former Member of limits the assistance it tries to extend to its Knesset (MK), should not be criminally people to the methods permitted by Israeli law: prosecuted for speeches he made several years parliamentary, legal and civil-political struggle, ago in which he praised Hezbollah for its participation in the public discourses (the success in the fight against the Israeli military Israeli, the Palestinian, the pan-Arab and the in southern Lebanon and expressed support global), material contributions to the needy for the “resistance” to the Occupation. The and so forth. Nonetheless, within the Supreme Court determined that MK Bishara’s Palestinian Arab minority there exists a range remarks fell within the immunity accorded to of views pertaining to questions that lie at the MKs with regard to “expressing a view … in heart of the conflict: What are the goals of the fulfilling his role.” The case against MK Bishara Palestinian people’s struggle? And what are the was the first in which an indictment was filed legitimate means of attaining these goals? First, 29 against an MK for expressing a political view, should the “two-state solution” be adopted and and therefore the ruling was very important settled for? Or should there also be an assertive for determining both the scope of the material aspiration for a comprehensive realization of immunity enjoyed by MKs and the protection the right of return of the 1948 refugees and of free speech in general. their decedents? Or, even further, should the In this short article, we seek to discuss goal be a bi-national state in all of the territory several aspects of the decision, including a of Mandatory Palestine? Or perhaps a Shari’a political issue of particular importance and [Islamic] state in the whole of Palestine should sensitivity: the space allowed by Israeli law for be established? Secondly, there is a profound the Palestinian Arab minority to act in the disagreement among the Arab minority on the Palestinian-Israeli conflict and the Arab-Israeli question of both the moral legitimacy and the conflict.2 effectiveness of various means, especially terrorism and armed struggle, employed in Like an Acrobat on a Thin Wire: The Palestinian endeavors to attain these or other Palestinian Arab Minority and the goals. Thirdly, opinions are also divided over Israeli-Palestinian Reality the type of future ties which should develop An examination of the current state of affairs between the minority and the state of Israel, reveals that a longstanding choice has been assuming that the latter deserves to continue made by the Palestinian Arab minority in to exist.4 Israel: to assist its people without joining the Here arises the main question we seek to armed struggle against its state.3 Collaboration address: What is the space for expression by Arab citizens of Israel with the armed permitted by Israel to its Arab citizens, with struggle in its various forms remains a very all of their diversity of opinion, regarding the marginal phenomenon that is met with serious goals and the methods of struggle adopted by internal condemnation. The overwhelming their people toward their state? “Expanding the Space(s)”: Thoughts on Law, Nationalism and Humanism At the heart of the Bishara case lies the issue majority, this demand constitutes a type of of the extent of various spaces for activity. “litmus test” of loyalty. Jewish-Israelis say: “If Firstly, it focuses on a call (by an Arab MK) you want real equality, accept equal for expanding the space for resistance to Israel’s obligations. This is the mark of your policies by the Palestinians and the Arab states citizenship, a condition for your full and organized groups like the Hezbollah. integration.” Arab citizens reply: “Make us feel Secondly, the ruling liberally outlines the space truly equal and then we might be ready to for political activity by the Palestinian Arab contribute something like civic service.” Each minority and its representatives with regard side is waiting for the fundamental change to to the Palestinian-Israeli and Arab-Israeli occur (first, of course) on the other side. conflicts. Thirdly, the ruling reflects an However, these assertions, of both sides, are additional space, at the margins of liberty, that insincere and, in any case, incomplete. Part of (still) exists for the Israeli Supreme Court in the tragic root of our current situation is the which to uphold fundamental liberal ideals of fact that the Palestinian Arab minority can toleration, albeit the emergency situation. never promise full loyalty towards or complete Creating “spaces” is indeed a vital need in acceptance of the state of Israel until its people 30 the current reality. Each side in the Israeli- is liberated from Israel’s Occupation. How can Palestinian conflict wallows in its pain, self-respecting people compromise on a entrenches itself in self-righteousness, focuses “bilateral deal” that ignores a central third side: on and is driven by its fears, and aspires to an the weak, humiliated and occupied Palestinian outcome that will put a definitive end (“once people? Who is supposed to agree and declare and for all”) to its suffering. The Palestinian- that she agrees to a deal for a “flesh pot” in Israeli reality is all the more difficult because exchange for surrendering her solidarity with it carries a bewildering package of acute but her people, which for two generations has been necessary decisions together with demands for under occupation by her state? A similar decisions that would be destructive if tackled example is the demand from the Arab minority acutely. The moods among us are colored in to take on the role of the avant-garde in black and white, and ignore the complexity relinquishing the realization of the Palestinian of the issues, narrowing the spaces and burning refugees’ “right of return” to Israel proper. bridges which may provide us with a way out Indeed, we believe that this concession is an of the current reality. One example is the essential component of an accord between the demand from the Arab minority in Israel of two peoples. However, it would be insensitive a sharp and decisive response to a paralyzing to fail to see why it is so hard for the Palestinian question: “Are you with us or against us?” This Arab minority in Israel to take such a role upon question is mainly asked by members of the itself. This minority, which escaped the fate Jewish-Israeli majority, but is sometimes heard of becoming stateless refugees, finds it very coming from the other direction, that of the difficult to spearhead the call to the Palestinian national sentiment. unfortunate refugees to accept the fact that This demand is profoundly present in our what transpired in 1948 is irreversible. shared lives. It stands, inter alia, at the basis These are only two examples of strenuous of the demand from Arab citizens of the state demands currently presented to the Arab to perform civic or national service. For the minority. Of course, not every unequivocal “Expanding the Space(s)”: Thoughts on Law, Nationalism and Humanism demand is invalid. We believe there is at least Nevertheless, a substantial majority within one demand that the minority should closely the Jewish community in Israel insists on heed. Palestinian Arab citizens of Israel, like imposing such restrictions on expressions of other human beings, are obliged to fully respect sympathy with the Palestinian people’s struggle the prohibition that morality and law impose against the state of Israel. Broad sections of the on the use of terrorism. Similarly, as long as Jewish majority try to pressure the Arab Israel does not degenerate into a murderous minority to side with the interests of the Jewish dictatorship, citizens should abide by the state, or at least to avoid an explicit restrictions imposed by the internal social endorsement of its people’s current struggle. covenant; that is, not to participate in an armed This position was incorporated into legislation. struggle against the state. Three main measures crystallized in the form However, there is an important moral of new amendments to laws passed in 2002, distinction between a call to the minority to about a year and a half after the outbreak of refrain from taking part in the armed struggle, the second Intifada: and a sweeping demand from it to surrender its solidarity with the struggle of its people. 1. Section 7A of the Basic Law: The Knesset, Such a demand seeks to narrow not only the which deals with restricting the ability of 31 minority’s freedom of action, but also its individuals and political party lists to freedom of expression on an issue very close participate in Knesset elections, now stipulates to its heart. Thus, such a measure carries the the following instructions: potential for great damage, and might A candidates’ list shall not participate in elections exacerbate the crisis of legitimacy of “the Jewish to the Knesset, and a person shall not be a candidate and democratic state” in the eyes of the for election to the Knesset if the goals or actions of national minority. Such a sharp rupture in the list or the actions of the person, expressly or by Israel’s legitimacy in the eyes of the minority implication, include one of the following: is a step on the road to its participation in the (1) negation of the existence of the State of violent struggle.
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