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Israel's nation-state law: Netanyahu government lays the foundations for a majoritarian system Lintl, Peter; Wolfrum, Stefan

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Empfohlene Zitierung / Suggested Citation: Lintl, P., & Wolfrum, S. (2018). Israel's nation-state law: Netanyahu government lays the foundations for a majoritarian system. (SWP Comment, 41/2018). Berlin: Stiftung Wissenschaft und Politik -SWP- Deutsches Institut für Internationale Politik und Sicherheit. https://nbn-resolving.org/urn:nbn:de:0168-ssoar-60134-5

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NO. 41 OCTOBER 2018 Introduction

Israel’s Nation-State Law Netanyahu Government Lays the Foundations for a Majoritarian System Peter Lintl and Stefan Wolfrum

On 19 July 2018, the Israeli parliament passed legislation known as the nation-state law. It is highly controversial in Israel as well as internationally, although strictly speaking there is little new contained in it. Its advocates emphasise that it merely gives expression to existing realities. Critics argue that the law discriminates against minorities, runs counter to democratic values and, in particular, undermines the principle of equality. The debate reveals the social tension in Israel between its ‘Jewish’ and ‘democratic’ identity. In addition, it becomes clear that the main sup- porters of the law on the government side have more far-reaching intentions than its wording suggests. Their aim is to place Jewish collective rights above individual rights and freedoms. The law is, therefore, also a manifestation of current govern- ment policy aimed at leading Israel away from a more liberal democracy and towards a majoritarian democracy. In particular, this policy affects the Supreme Court as a defender of liberal principles.

Israel does not have a constitution, instead The law has been a long time coming. it has a set of basic laws that have consti- Since 2011, a variety of different drafts tutional status. This is because since the have been discussed in the Knesset. There state was founded in 1948, there has never was widespread support among the Zionist been any agreement on what precisely the parties for the need to establish the Jewish “Jewish” in the Jewish state is supposed to nation-state character in Israel’s Basic Law. be and how the state’s Jewishness relates to The motivation for this is mainly fuelled by its democratic character. The newly adopted three developments. Firstly, stagnation in 14th law entitled, “Basic Law: Israel – The the peace process with the Palestinians has Nation State of the Jewish People” claims meant that, for the majority of Israelis, the to codify the Jewish element of the state. most important social goal is no longer a It declares – with constitutional status – peace agreement, but the preservation of Israel to be a Jewish state. Given that the Israel as a Jewish state. Secondly, to reject law is supposed to define the character of the demands of post-Zionists and the Arab the state, it must be accorded high status, minority in the country who want to define comparable to the preamble of a consti- Israel as a neutral rather than a Jewish tution. state. Thirdly, the nation-state law serves as a proactive statement against attempts the state’s strong connection to the Jew- to de-legitimise Israel, in particular by the ish diaspora in general. It also affirms the Boycott, Divestment and Sanctions (BDS) status of the whole of Jerusalem as the movement, which is campaigning inter- state’s capital, although this was already nationally for economic, political and cul- enshrined in a separate Basic Law in 1980. tural sanctions against Israel. That the law continues to court fierce con- Nevertheless, the recently passed version troversy, is essentially due to four conten- of the law was heavily debated in Israel. tious issues. Amir Ohana (Likud), chairman of the joint committee that legislated the nation-state Codification of Israel as a law, described it as the “most important Jewish state law in the history of the state of Israel”. For Prime Minister Benjamin Netanyahu, the The sharpest criticism is reserved for Sec- law takes Israel to its historical destiny – tion 1 of the law, which defines Israel fulfilling the tenets of Zionism. Some Arab as the historical homeland of the Jewish Members of the Knesset, on the other hand, people and exclusively grants the Jewish ripped up copies of the law as it was adopted people the right to national self-deter- and repeatedly shouted “apartheid” at its mination in the country. The understand- supporters. In addition, the Jewish oppo- ing of ‘Jewishness’ refers above all to the sition, many civil society organisations and character of Judaism as a nation, as for- even President Reuven Rivlin have denounced mulated by Zionism. This does not mean the law as being discriminatory, unneces- that the religious and ethnic elements of sary and flawed. It has also received strong Judaism are ignored, but the purpose of the criticism internationally – from the EU to law is to stress the legitimacy for independ- representatives of Reform Judaism in the ent statehood, which is inherent in any US and internationally renowned Israeli national self-understanding. lobbyists, such as Alan Dershowitz, who Against the backdrop of this self-under- said the law made it harder to defend Israel. standing, the creation of a Jewish state is In contrast, its supporters argue that the the raison d’être that underpins Israel, and law only articulates what is already a reality: a fact that has been expressed in many of Israel is a Jewish state. In their view, former the country’s other laws and jurisprudence. legislation adopted by a liberal Israeli elite Israel declared itself an independent Jewish has created an imbalance in which the state as early as 1948 and was recognised by Jewish element of the state is no longer the majority of the international communi- sufficiently asserted. They claim the nation- ty. Nevertheless, the question of whether state law has redressed this imbalance. Israel should be a Jewish state is highly con- troversial among Arab and Jewish Israelis. Large parts of the Arab-Palestinian popu- Key contentious issues lation categorically reject this section of the law. From their point of view, such a defini- Although some stipulations in the law are tion has a discriminatory component since new, many of the regulations can already the further legalization of the Jewish char- be found in existing laws. However, these acter of the state cements the division be- regulations now have constitutional status. tween Arab and Jewish citizens. For, unlike Many aspects have a purely declarative char- in many western states, citizenship in Israel acter. For example, the law regulates state is not identical to the identity of the state. symbols (flag, national anthem, coats of While you can be an Israeli citizen, there arms), calendars (Hebrew and Gregorian) as is no Israeli nationality – as the Supreme well as public holidays and rest days. In ad- Court has declared in a ruling. For example, dition, it confirms current practice, such as Israeli birth certificates differentiate be- immigration opportunities for all Jews and tween Jewish and Arab citizens.

SWP Comment 41 October 2018

2 As a result, the character of the state is Importance of determined by the national majority, which democratic principles automatically gives the non-Jewish minor- ities secondary status, at least in any fun- Unlike the question of Israel’s Jewish char- damental issues where state identity is acter, Jewish and Arab critics of the law concerned. Whether a state that links its agree on the principle of “equality”. They identity to the nationality of the majority, unanimously complain that this principle, defined along ethnic and religious lines, which had not been enshrined in any is sui generis discriminatory is a matter Israeli Basic Law before, was not included of heated debate in Israel – in politics as in the nation-state law and that this would well as in civil society and academia. It is undermine basic democratic principles. a question that touches fundamentally Jewish opposition politicians had suggested divergent concepts of the state. Opponents that the Declaration of Independence from of the idea of the Jewish state call for a 1948 be passed as a Basic Law. It declared neutral state based on a liberal notion of Israel a Jewish state, but assured all citizens popular sovereignty that does not permit social and political equality. Israeli histo- the representation of majorities or minor- rian, Alexander Yakobson, pointed out that ities in state legislation. The other side while there are a number of countries in argues that such flawless liberalism only which state identity is the nationality of the exists on paper. References are made to majority, the principle of equality is present examples such as Spain, Latvia or Croatia – in all these countries. countries that constitutionally define However, it is no coincidence that the nation-state identity through the majority principle of equality is not mentioned in society. Even the Parliamentary Assembly the law. In the previous legislative period, of the Council of Europe attests that nation- attempts were made to reach a compromise ality is not necessarily to be equated with between the Jewish parties in order to in- citizenship (given that its Member States clude this principle into the bill. But this follow different concepts of ‘nation’ that failed because of resistance from Likud and are not compatible with each other). the Jewish Home. Representatives of these Arab-Palestinian politicians are, there- parties argued that the principle of equality fore, calling for a “state for all citizens”, could be interpreted by the Supreme Court sometimes also postulating the right to as a collective rather than an individual prin- question the Jewish character of Israel. In ciple. It would therefore be better to omit contrast, many Jewish Israelis see the “state the principle altogether than to take the for all citizens” formula as a denial of Isra- risk that Palestinian Israelis would ultimate- el’s right to exist. Consequently, the Knesset ly be granted collective rights through the has tried several times to pass a bill that Supreme Court. Yariv Levin (Likud), one of would disqualify parties with such inten- the architects of the law, explicitly stated that tions from participating in parliamentary the inclusion of a general principle of equali- elections – but the Supreme Court has so ty is “the exact opposite of what I want”. far prevented this. The relationship of the state to the prin- The historical genesis of the state of Israel ciple of democracy has not been addressed further exacerbates this dispute. It is inex- in the text of the law, although the latter tricably linked to the flight of the Jews from was anchored in most of the bills. However, European anti-Semitism and also the Israeli- in these versions, the principle of democra- Palestinian conflict, in which both sides – cy was subordinated to the Jewish character Zionists and Palestinians – make a historic of the state, which found no majority with- claim to the same piece of land. The discus- in the governing coalition. The Kulanu sion about the nation-state law is, therefore, party, in particular, was against such a hier- also an expression of the Arab-Israeli con- archisation, fearing the democratic char- flict which remains unresolved to this day. acter of Israel would be compromised. This

SWP Comment 41 October 2018

3 ultimately meant that any definition for Section 4 of the law is even more contro- the relationship between Jewish and demo- versial. It states that the Arabic language cratic was omitted. When representatives should retain its special status in Israel and of the government point out that the rela- that this clause does not change the status tionship between democracy and Judaism given to the Arabic language before the is already contained in the Basic Law: basic law was created. However, Arabic has, Human Dignity and Freedom from 17 March in fact, been downgraded by the law be- 1992, this sounds contradictory because, cause it will no longer be an official state according to Justice Minister Ayelet Shaked language. How this will affect the position (Jewish Home), the nation-state law should of Arabic in the country is unclear. In any “protect the Jewish character of the state, case, the regulation has clear symbolic power even if that means sacrificing human in the context of the already tense relation- rights”. ship between the Arab Israelis – especially those of Palestinian origin – and the Jewish Regulations on minorities majority. Even veteran Likud politicians like Benny Begin or Moshe Arens doubt the Article 7 of the law says that Jewish settle- necessity of this paragraph. They warn that ment of the land represents a national it may contribute to an unnecessary wors- value and should, therefore, be promoted. ening of the relationship between Jews and This formulation actually represents a Arabs in the state. compromise by the government. An earlier draft even mentioned communities segre- Redefining the relationship with gated by religion and nationality. After the Jewish diaspora sharp protests, even from within the gov- ernment, this passage was changed – Many progressive Jewish voices in the US also because Israel Beitenu, the party of share these criticisms. However, one para- the Russian-speaking minority, which, graph in the law is explicitly directed in part, is not even recognised as being against Reform Judaism itself, which makes Jewish, feared being discriminated against. up the bulk of the US diaspora. At the last The opposition is critical of any explicit minute, the original formulation that the promotion of Jewish and not Arab settle- state works “everywhere” to strengthen the ments, especially considering the infrastruc- relationship between the Jewish diaspora ture in Arab cities has thus far been sorely and Israel was changed and now stipulates neglected. In the past, such regulations that the state is only active “among the were prohibited by the Supreme Court. It is Jewish diaspora” in order to achieve this a long-pursued project of the Israeli right to (Section 6b). This passage, reformulated at give (also legal) preference to Jewish settle- the insistence of the ultra-Orthodox, is ment. The central idea is that there should designed to rule out Reform Judaism being be no regional Arab majority anywhere in able to influence Israeli jurisprudence in Israel. In particular, this applies to areas respect of conversions and the status of with a lower Jewish share of population, non-Orthodox Jewish denominations. This such as Galilee or the Negev. The passage is intended to consolidate the hegemonic adopted now does not exclude further settle- status that Orthodoxy has in Israel with ments in the West Bank. It was introduced regard to outside interference in religious by Naftali Bennett, chairman of the Jewish matters. Moreover, the passage paves the Home Party which is in favour of at least way for state-subsidised influence of Ortho- partially annexing the area. In general, a doxy on the Jewish diaspora. This is also large number of parliamentarians who ap- made clear in Section 6c which states that proved the nation-state law have also de- Israel will “act to preserve the cultural, his- manded an annexation or partial annexa- torical and religious heritage of the Jewish tion of the West Bank. people among Jews in the Diaspora”. Here,

SWP Comment 41 October 2018

4 Israel is implicitly asserting interpretive this law allowed judicial review complaints sovereignty over essential issues of Jewish against legislative decisions made by the identity worldwide. Knesset to be put before the Supreme Court. The nation-state law also explicitly stipu- This is why this unprecedented amendment lates, for the first time, that the Jewish is commonly referred to as the ‘constitu- people’s religious right to self-determina- tional revolution’ in Israel. tion is fulfilled in the state of Israel. A lot of However, these far-reaching develop- the meaning is lost in translation because ments on the part of the judiciary are the Hebrew word ‘dati’ not only means reli- controversial for various reasons. Firstly, gious, but is also synonymous with ‘ortho- the possibility of a judicial review was only dox’. The confessional pluralism of American brought about by a ruling from the Su- Judaism does effectively not exist in Israel preme Court, similar to what happened so when it talks about religion, it means the historically in the US. However, since this orthodox interpretation of Judaism. The in- was not intended by the Knesset legislation, clusion of this formulation reflects chang- opponents see this as an illegitimate infil- ing demographic realities. Meanwhile, the tration of popular sovereignty by the judi- Orthodox population accounts for just ciary. Secondly, President of the Supreme under one quarter of the total Jewish popu- Court, Aharon Barak, argued that the word lation. Therefore, these passages in the law “Jewish” in the phrase ‘Jewish and demo- are also indicators of a growing gap between cratic’ by no means refers to religious tra- Israel and the American-Jewish diaspora, dition. Rather, it merely emphasises the uni- as seen in recent years in questions of con- versal values of the Jewish Enlightenment. version, restrictions on non-Orthodox Barak had, therefore, at a stroke defined the denominations at the Wailing Wall and Jewish character of the state without any even general religious practice in Israel. social consensus. Thirdly, Barak is accused of having established judicial actionism in the wake of the constitutional revolution, The political intention under the premise that everything is justi- behind the law ciable, which interferes too much with the interests of the executive and legislative Beyond the specific passages discussed, the branches. In so doing, the Court is alleged law has a deeper thrust that goes further to have established case law that is too than the wording of the text. In essence, liberal and too targeted at individual rights. it is about whether the state should be As a result, minority interests would be characterised by a civil nationalism that given preference over majority interests. emphasises universal principles, such as The real intention of proponents of the equality or individual values and freedoms, nation-state law is probably to reverse these or by a nationalism that emphasises par- developments. The main protagonists here ticular collective rights that are ethnically, are the Likud and Jewish Home parties who nationalistically or religiously justified. have managed to assert themselves against Proponents of the law adhere to the latter. critics of the law within their own govern- In their eyes, the law is a tool to move the ment – in particular, the ultra-Orthodox state in that direction. parties and Kulanu. As Ayelet Shaked ex- In doing so, the nation-state law is di- plained, “the constitutional revolution has rected, in particular, against the “Basic Law: emptied the idea of a Jewish state of its Human Dignity and Liberty” from 1992. It content” and “radically sanctioned individ- codified, for the first time, individual basic ual rights”. The Minister of Justice called for rights, human rights and freedoms into a moral and political revolution to reverse basic law and also stipulated that the state the problematic trend that had destroyed of Israel was Jewish and democratic. This the achievements of Zionism. Similarly, had far-reaching consequences because Likud politician Yariv Levin argued that the

SWP Comment 41 October 2018

5 law would reverse the consequences of the would have to be interpreted through the constitutional revolution and establish new prism of the nation-state law and therefore legal foundations and a new state identity. be subordinate to the Jewish character. Specifically, this is directed against However, the right-wing conservative Supreme Court rulings over the last two thinkers in Likud and the Jewish Home are decades which have given precedence to not just concerned with the end of ‘liberal individual rights and freedoms over major- supremacy’ in the legal system. In the long ity rights. These include repeatedly over- term, they are aiming to develop a new turning Knesset-imposed disqualifications understanding of the state, according to of Arab parties calling for a “state for all which the common good is determined in citizens”; the ruling on maintaining family favour of the collective (albeit with liberal reunification of Palestinians in the West economic influences). The protagonists see Bank and Israel; the ban on detaining refu- themselves as having the responsibility to gees; the evacuation of ‘outposts’ of Jewish define the constitutional foundations of the settlers in the West Bank; as well as the common good according to national, ethnic priority given to freedom of expression and and/or religious principles. This vision ex- art in relation to public outrage over, for plicitly contradicts both secular-socialist example, the film “Jenin, Jenin” and pro- Worker Zionism from the first decades of hibiting the prioritisation of expanding and the state as well as the liberal-universalist maintaining exclusively Jewish over non- legal interpretation from the 1990s and Jewish settlements (as in the Kaadan case). even the national-liberal principles of the According to right-wing politicians, all ideological founding fathers of Likud, such these – and other – judgments were based as Zeev Jabotinsky and Menachem Begin. on an incorrect evaluation of norms; in their Adopting the nation-state law is clearly view, the Supreme Court should have ruled an attempt to lead the political system of in an opposite manner in all these cases. Israel in a majoritarian direction. Individual It is clear to the initiators of the nation- minority rights, protected by constitutional state law that this can only be a first step paragraphs and separation of powers, are towards fully implementing desired changes to be restricted by Jewish majorities in the in the state – which are already evident in Knesset. Israel’s current government is join- education, the military and cultural policy, ing political currents similar to those in because how the law is interpreted depends Hungary, Poland, Slovakia and elsewhere, on the respective judges at the Supreme where illiberal and ethno-national politics Court. Yariv Levin said, “Its major test will are practiced on behalf of the majority. This be in its application”; a change in the legal policy is justified as being a fight against an system will only ultimately be possible if elitist liberal minority that is imposing its the composition of the court is also changed. universalist view of the world on the major- The government has already reformed the ity. Netanyahu’s recent statement that “the election of judges and awarded four of the majority have rights too, and the majority six judicial posts to be filled in this legis- rules” is typical of such a populist approach. lative period to decidedly conservative can- According to this logic, these advances by didates. This is flanked by political initia- the political right are also passed off as a tives, such as the adoption of an “Override commitment to more democracy. Clause” (Piskat HaHitgabrut), through Initiatives aimed at weakening the legal which the Knesset can overturn judgments status of minorities are accompanied by a made by the Supreme Court. A similar rhetoric that increasingly portrays the Arab- clause was included in a previous draft of Palestinian community, as well as leftist the nation-state law, but was ultimately Israelis, as an unwanted part of society. removed due to lack of majority support: It Netanyahu has insinuated that the coun- would have meant that any jurisprudence try’s Arab population is a fifth column, an in Israel – including other Basic Laws – internal enemy. This is again emphasized

SWP Comment 41 October 2018

6 in the campaigns for the municipal elec- dent. The Supreme Court has already filed tions of October 2018, where the Likud ad- lawsuits against the nation-state law. In this vertises it is either “us or them”; insinuat- context, Ayelet Shaked has said that repeal- ing voting for left or Arab parties will lead ing the law would amount to an “earth- to Islamic terrorism. In a similar mind set, quake” and would lead to a “war” between Minister of Culture, Miri Regev, has called the institutions. The Supreme Court has yet for loyalty tests and Israel Beitenu for oaths to comment on this case. However, in pre- of allegiance from members of non-Jewish vious judgments, president Esther Hayut has minorities. Simultaneously, there are ef- suggested that a constitutional review could forts to limit the visibility of Arab-Palestin- also be carried out on a basic law where it un- ian culture. Minister of Education, Naftali dermines Israel’s democratic identity and the © Stiftung Wissenschaft Bennet, removed a short story called Bor- foundations of its constitutional structure. und Politik, 2018 derlife from the education syllabus because From a German and European point of All rights reserved it contains a Jewish-Arab romance. Defense view, it is important to note that, despite all This Comment reflects Minister, Avigdor Lieberman, demanded the national and international criticism, the the authors’ views. that poems by award-winning Palestinian law does not mean the end of Israeli democ- national poet, Mahmoud Darwish, be banned racy. However, the current government’s The online version of from Army Radio. Several members of the efforts to transform Israel from a liberal this publication contains government have introduced bills to restrict democracy (which was limited anyway) to a functioning links to other or prohibit the use of loudspeakers for majoritarian democracy are clearly visible. SWP texts and other relevant sources. Muslim calls to prayer. The decisive factor will be how the law At the same time, the nation-state law is implemented in legal practice. Three re- SWP Comments are subject has not only been adopted for ideological quirements are particularly important here: to internal peer review, fact- reasons, but also as an election tactic. Prime maintaining the separation of powers, en- checking and copy-editing. Minister Netanyahu is clearly benefiting titlement of all citizens to equality before For further information on our quality control pro- from the increased social polarisation this the law and protecting minorities against cedures, please visit the SWP law is causing. Firstly, he can portray his discrimination. Should – as critics of the website: https://www.swp- own opponents as unpatriotic, highlighting law fear – minorities become second-class berlin.org/en/about-swp/ the contrast between right and left. Secondly, citizens in legal practice, the “Jewish and quality-management-for- the law has weakened the opposition be- democratic state” project threatens to run swp-publications/ cause it has accentuated the differences into even greater difficulties. It is, therefore, SWP between its Jewish and Arab critics. In this more important than ever to maintain a per- Stiftung Wissenschaft und respect, launching the law was also a po- manent dialogue with Israel, referencing Politik litical move by Netanyahu along the lines the various agreements the country has with German Institute for of divide and rule. the EU, on the basis of which the observance International and of human rights and democratic standards Security Affairs were established. Indeed, by adopting this Ludwigkirchplatz 3–4 Outlook law, Israel is joining the ranks of states that 10719 Berlin are increasingly turning away from the prin- Telephone +49 30 880 07-0 To what extent the law will be upheld by ciples of liberal democracy established in Fax +49 30 880 07-100 the Supreme Court remains to be seen. In the post-war West. However, supporters of www.swp-berlin.org Israel, the question as to whether there can the law – including Netanyahu – often [email protected] be a so-called “unconstitutional constitution- argue that the law lies within the frame- ISSN 1861-1761 al amendment” i.e. whether the Supreme work of the principles of ‘Western democra- Court can also rule on a constitutional cies’. In this respect, it is also important to Translation by Martin Haynes amendment, remains unresolved. A judg- them that Israel is internationally perceived ment on this issue would create a prece- as a democratic state belonging to the West. (English version of SWP-Aktuell 50/2018)

Peter Lintl is Head of the project “Israel and its regional and global conflicts: Domestic developments, security issues and foreign affairs”. Stefan Wolfrum is Research Assistant for this project. The project is located within SWP’s Middle East and Africa Division and is funded by the German Foreign Office.

SWP Comment 41 October 2018

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