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Understanding Israel’s Nation State Law

by Mitchell Bard

A Defining Moment
Context
Zionist Principles
Hebrew As Sole Official Language
Promoting Jewish Settlement
Treatment of the Diaspora
Freedom of Religion
Public Opinion
Is the Law Undemocratic?

A Defining Moment

Following months of controversy and nearly seven years of heated debate, the Knesset adopted a new Basic Law: Israel – The Nation State of the Jewish People by a vote of 62-55 on July 19, 2018. Since Israel has no written constitution, the Basic Laws provide legal statements outlining the rights of the individual and fundamental principles of the state that are expected to be incorporated into a formal constitution if one is approved.

Prime Minister Benjamin Netanyahu said after the vote:

This is a defining moment in the history of Zionism and in the history of the State of Israel. One hundred twenty-two years ago after [Theodor] Herzl shared his vision, we have established into law the fundamental tenant [sic] of our existence. “Israel” is the nation-state of the Jewish people. A nation state that respects the individual rights of all its citizens; and in the Middle East, only Israel respects these rights. This is our state, the state of the Jews. In recent years there have been some who have attempted to cast doubt on this, and so to undercut the foundations of our existence and our rights. Today we etched in the stone of law: This is our state, this is our language, this is our anthem, and this is our flag.

Context

The Nation State Law did not emerge in a vacuum. Its supporters were influenced by several developments inside and outside the country.

One concern has been the effort by critics to deny Israel’s status as a Jewish state even though this was at the foundation of its creation. The partition resolution aimed to create a Jewish and an Arab state in Palestine. The representatives of the Jewish community declared on May 14, 1948, “the establishment of a Jewish State in Eretz-Israel, to be known as the state of Israel.”

Internally, Hazony observed, “post-Zionists repudiated the idea of a ‘Jewish state’ and sought to transform the country into a ‘state of all its citizens’ by stripping it of any connection to Jewish history, peoplehood, or symbolism. Meanwhile, externally, the Palestinians and their supporters have refused to recognize Israel as a Jewish state. They also continue efforts to delegitimize Israel through the boycott, divestment and sanctions (BDS) campaign and specious comparisons to the racist regime in South Africa (which have also been inaccurately applied to the new law).

The law was also a reaction to decisions by Israel’s Supreme Court. Just as many Americans, typically conservatives, have criticized the U.S. court for engaging in “judicial activism,” Israelis, again mainly on the right, have objected to their court “legislating from the bench” and felt the need to enshrine in law basic Zionist principles and symbols.

The law’s enactment also came a month after three Arab MKs proposed a law that would have turned Israel into a binational rather than a Jewish state. It would have resulted in the cancellation of the Law of Return and discarding the state’s Jewish symbols.

Yet another factor that influenced both the content and timing of the new law was the expectation that new elections would be held in the coming months. Netanyahu and other supporters of the law were seen as playing to their political base, which supports the substance of the legislation.

Zionist Principles

As Netanyahu said, this law codifies Israel’s status as the “national home of the Jewish people.” The law also declares Jerusalem as the capital of Israel (restating the language already in the Basic Law - Jerusalem, Capital of Israel), sets the Hebrew calendar as the state’s official calendar and confirms Shabbat and Jewish holidays as official days of rest while allowing non-Jews to determine their own rest days and holidays. It recognizes the current national flag as the official one, the menorah as the state’s symbol and Hatikvah as the national anthem. It also states that Israel will endeavor to ensure the safety of all Jews and “preserve the cultural, historical and religious legacy of the Jewish people among the Jewish diaspora.”

The law has provoked widespread criticism both inside and outside Israel. For example, Yohanan Plesner, president of the Israel Democracy Institute (IDI), called the law “ jingoistic and divisive” and warned it “threatens to drive a wedge between Israel and the Diaspora, and fuel the campaign to delegitimize Israel.”

Evidence of that wedge came in the form of criticism from several American Jewish organizations, including the American Jewish Committee and the leader of the Reform movement. The EU was also among the critics of the legislation.

Supporters of the law argue the existing Basic Law: Human Dignity and Liberty defines Israel’s democratic character, but Israel’s Jewish character was not embedded in constitutional law. They argue that judges will now have to consider Israel’s Jewish character, as well as individual rights and freedoms, in future decisions. Even two of the new law’s critics acknowledge that it does not contradict existing law:

The Jewish Nation State Law should be read in conjunction with the Basic Law on Human Dignity. Significantly, the new Basic Law doesn’t directly detract from the Human Dignity law’s commitment to Israel as “Jewish and democratic,” to equality under the principle of human dignity and to “the spirit of the principles set forth in the Proclamation of the Establishment of the State of Israel.” That 1948 Proclamation famously pledged that the State of Israel would “foster the development of the country for the benefit of all its inhabitants” (our emphasis), and “ensur[ed] complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.”

Dr. Amir Fuchs, Head of the Defending Democratic Values Program at IDI, is not satisfied by this explanation. “There is no country in the world, he said, that has not specifically enumerated the right of equality in its constitution; therefore, it is difficult to understand why the authors of this bill insist not to include this important value. The right to equality is embedded in the values mentioned in the Declaration of Independence, which has been the definitive document framing the character of the State of Israel for the past 70 years.”

Professor Gerald Steinberg of Bar-Ilan University counters that this law is not Israel’s only law. It’s one part of a broad and detailed democratic map. Does every U.S. law or constitutional amendment include the word democratic?

The law also enshrines the Zionist idea upon which the nation was founded, namely that Israel is a country established to fulfill the Jewish people’s “right to national self-determination.” Legal scholar Eugene Kontorovich notes that seven European states have similar “nationhood” constitutional provisions. Furthermore, no nation grants a right to self-determination to a minority within its borders; otherwise the Basques in Spain and Kurds in Turkey or Iraq would have their own states. This clause is also a response to Israel’s detractors, such as advocates of the boycott, divestment and sanctions (BDS) movement, who assert this right belongs to the Palestinians and not the Jewish people.

Any reference to Jerusalem sends many of Israel’s detractors into a frenzy; however, the law simply states the reality that the city is the Nation’s capital. It does not in any way change its status or even define its boundaries so it’s final status remains a topic for possible future negotiations.

Hebrew As Sole Official Language

Much of the criticism of the law focuses on two clauses that affect the standing of Israel’s non-Jewish minority groups, especially Arab-Israelis who make up 20 percent of the population. Opponents of the law viewed them as codifying a system of discrimination against Arabs and other minorities. Arab Knesset members saw the legislation this way and ripped up copies of the bill after its passage.

Attorney General Avichai Mandelblit said the law does not violate the rights of the country’s minorities, because it does not override Israel’s other Basic Laws that guarantee them equality,

Nevertheless, some Druze, Arabs who serve in the Israeli military, also considered the measure a slap in the face. Sheikh Muwafak Tarif, spiritual leader of the Druze community, met with Netanyahu and requested that he change the law to recognize the Druze community’s status.

One reason for their anger was that the law downgrades the status of the Arabic language from an official state language to one holding a more ambiguous “special status.” Hebrew is now Israel’s only official language.

Any alteration of a long-established status quo is jarring; however, the recognition of Hebrew is consistent with the policies of other countries which give official status only to the majority language. The previous recognition of Arabic was a remnant of the British Mandatory period and does not reflect today’s reality in which 80% of Israelis, including most Arabs, speak Hebrew. Moreover, the change in the law also effected the status of English, which is no longer an official language either.

Promoting Jewish Settlement

The other controversial clause states that Israel will “encourage and promote” Jewish settlement around the country. The language was altered so as not to suggest this would lead to the creation of Jewish-only towns, however, critics were not mollified. The American Jewish Committee, for example, said the language could be viewed as a “euphemism for the originally proposed endorsement of support for Jewish-only communities in Israel.”

Indeed, Israel’s enemies interpreted it that way. They said the law promoted segregation, giving them ammunition for their efforts to tar Israel with comparisons to the racist regime in South Africa. Though he opposed the law, Fuchs disagreed with their conclusion. “It does not form two separate legal norms applying to Jews or non-Jews,” he said.  

David Hazony, executive director of the Israel Innovation Fund, noted that some critics have interpreted this clause as promoting Jewish settlement in Judea and Samaria. While that may be the political goal of some of its supporters, Hazony said the “word being translated as ‘settlement’ is hityashvut, which to any Israeli ear refers more to the Galilee and the Negev and the history of building new Jewish communities a century ago across the country than it does to the West Bank.”

Kontorovich argues this clause is consistent with the League of Nations Mandate for Palestine, which sought to “encourage . . . close settlement by Jews.” More important, he says it does not “prescribe or authorize any particular policies” unlike, for example, the state constitution of Hawaii, which Kontorovich notes “authorizes land policies to promote homesteading by ethnic Hawaiians, and provides preferential land policies for them.” Kontorovich adds that Israel’s Supreme Court has ruled that Arabs have a right to create residential communities in Israel that exclude Jews but Jews do not have the same right to exclude Arabs.

Kontorovich may be correct, however, Fuchs said these provisions “will worsen the feeling of non-Jews and especially the Arab minority in Israel.” In addition, the negative reaction in the media, the United States and Europe, reinforced concerns that the law would damage Israel’s international standing.

One indication of the double standard applied to Israel is that no international uproar followed Palestinian Authority President Mahmoud Abbas’ declaration that not “a single Israeli” would be permitted to live in a Palestinian state.

Treatment of the Diaspora

American Jewish critics were particularly concerned with the clause calling on the state to act to “preserve the cultural, historical and religious legacy of the Jewish people among the Jewish Diaspora.” This was viewed as condescending and devaluing Jewish life outside Israel. It also was seen as an attempt to minimize Diaspora Jewry’s influence on Israeli policies. IDI noted “this could encourage Israeli governments – already under enormous political pressure from ultra-Orthodox parties – to make decisions that affect the entire Jewish people, without considering their ramifications on Diaspora Jewry.”

Freedom of Religion

One thing the law does not do is establish Judaism as the state religion, which distinguishes Israel from many countries that established state religions. Monaco, Lichtenstein, Malta, Bolivia, Argentina and Vatican City, for example,  recognize Roman Catholocism as their official religion. Buddhism is the state religion in several countries, such as Thailand, Sri Lanka and Cambodia. Virtually all Muslim countries recognize Islam as the state religion. Islam also is given this status in the draft constitution of the Palestinian Authority (and Arabic is the official language).

Israeli Public Opinion

Polling shows the Israeli public is polarized over the issue. Overall, about 58% expressed support for the law in a Walla News poll, while about a third of the public – 34% – opposed it. Centrists were nearly evenly split while three-quarters of left-wing voters opposed the law as did all Arab voters. A majority of all voters sided with the Druze complaints about the law.

The results were good news for Netanyahu’s reelection chances as the law was overwhelmingly popular with right-wing voters in general (85%) and voters for his Likud Party (92%) in particular. Roughly three-fourths of ultra-Orthodox voters also approved of the law.

The monthly Peace Index poll conducted by the Israel Democracy Institute found the public more divided. Only 45% said they were either “sure” or “thought” there was a need for the law; 47% said there was no need and 62% said it should have included a reference to equality. In addition, in focus groups run by public opinion analyst Dahlia Scheindlin, even right-leaning participants had a negative opinion of the law. Supporters of the Netanyahu government described the law as “reckless, rushed, politicized, and unnecessary,” and that it “just creates a provocation.”

Is the Law Undemocratic?

Kontorovich noted that many critics called the law undemocratic even though it was approved by the elected representatives of the Israeli public.

In reality, Israel’s Basic Law would not be out of place among the liberal democratic constitutions of Europe — which include similar provisions that have not aroused controversy. The law does not infringe on the individual rights of any Israeli citizen, including Arabs; nor does it create individual privileges. The illiberalism here lies with the law’s critics, who would deny the Jewish state the freedom to legislate like a normal country.

The nature of democracy is that the representatives of the people make laws based on a vote by the majority (certain legislation requires a super majority, as in U.S. ratification of treaties) of those elected officials. It is not uncommon for controversial issues to have close votes and for the losers to be unhappy. Dissatisfaction with the outcome, however, does not make it undemocratic. Moreover, like Americans, Israelis can challenge laws in court, and three Knesset members have already done so, one sign of the health of Israel’s democracy. Another indication is the ability of Israelis to vote for new representatives who could revoke or alter the law if they can convince a majority of all Knesset members it is necessary. In addition, the fact that the law was vigorously debated both before and after its passage exemplifies the vibrancy of Israeli democracy.

Ironically, after the Palestinian Authority criticized the law, Palestinians in Jerusalem were told not to exercise their democratic rights. The council of Palestinian muftis issued a religious ruling barring Muslim residents of Jerusalem from running for office or voting in the city’s municipal elections.

Even a critic of the law, IDI President Yohanan Plesner admitted the practical impact of the bill was currently merely “symbolic and educational.” He said it “won’t have immediate concrete implications.” IDI vice president Yuval Shani added, “It is not a game changer and has very little problematic implications….It won’t change how the country is run.”

Still, other critics have vowed to continue to fight the law. Rick Jacobs, president of the Union for Reform Judaism, declared: “There are millions of us who are united in our opposition to this new law and fortified in our determination to continue to fight for an Israel that will be true to its own founding declaration of equality for all within its land, with the freedom to worship and to live with true hope for the future.”

In a rare public rebuke of the Israeli government, the Jewish Federations of North America (JFNA) issued a statement expressing disappointment with the law: “As strong supporters of Israel, we were disappointed that the government passed legislation which was effectively a step back for all minorities.”

Paradoxically,  supporters of the law insisted it was necessary to correct flaws and omissions in current law while telling critics the law does not change anything.

Responding to Druze Anger

The government was particularly sensitive to the concerns of the Druze community due to their loyalty to the state and service in the military. The Jewish Federations of North America expressed solidarity with the Druze in a public statement: “Jewish Federations stand shoulder to shoulder with the Druze community and urge Israeli legislators to work with the community as soon as possible to address their very real concerns.”

Netanyahu acted quickly to quell the firestorm created by the Nation State Law by appointing a team of government officials, Druze leaders and senior reserve officers to work on language to recognize the status of the Druze and Circassian communities. The group agreed to support a law based on the following points:

1. Anchoring in law the status of the Druze and Circassian communities. The law will esteem the contribution of the Druze community to the State of Israel in building up the country, strengthening security and fashioning the face of Israeli society as an equal and varied society, and will include support for community religious, cultural and educational institutions; the strengthening of Druze towns and villages, including solutions for residential construction, and the establishment of new communities as necessary; and the preservation of the Druze heritage.
2. Anchoring in law the eligibility for benefits of minority community members – of all faiths and communities – who serve in the security forces, to achieve social equality.
3. Anchoring in a basic law recognition of the contribution of those – of all faiths and communities, including the Druze – who take part in the defense of the state.

Such a law may create problems as well by excluding other Israeli Arabs and reinforcing the impression they are second-class citizens. As Pnina Sharvit Baruch, Senior Research Fellow at the Israeli Institute for National Security Studies, noted:

This is a loyal public, the majority of whom wish to integrate into Israeli society. There is concern that this public will be drawn into adopting more extreme positions, feeling they are being pushed out. Such an outcome is clearly not in the interests of the State of Israel, and could adversely affect national security.

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Eric Cortellessa, “Reform and AJC leaders bitterly criticize Israel’s nation-state bill,” Times of Israel, (July 19, 2018);
Amir Fuchs, “The Nation State Bill Bias,” Israel Democracy Institute, (July 10, 2018);
Omar Barghouti, “Israel declares itself apartheid state, and gov’ts must hold it accountable,” Mondoweiss, (July 19, 2018);
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