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Israel's Nation-State 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”.
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