There we have it: Only a little over a year after the prior general election, Israelis will be asked to vote in another round of parliamentary elections. Going by the opinion polls, it’s going to be a battle between the right and the far right, but more about this in a separate post. As always with all things Israel, the collapse of the Netanyahu government and the impending dissolution of Israel’s parliament, the Knesset, is influenced by its perennial conflict with its Palestinian neighbours. However, since there are no negotiations being conducted between the Israeli government and the Palestinian Authority, the question arises what the root cause of the conflict was.
Well, the culprit is referred to as “Basic Law: Israel as the Nation State of the Jewish People” (referred to as the “Jewish Nation State Bill” for the remainder of this post). So far so good. No one would seriously dispute Israel’s Jewish identity. After all, the country’s foundation was shaped by the suffering visited upon people of Jewish faith in continental Europe, but especially during the Nazi regime in Germany and the subsequent Holocaust of the European Jews. So, why a bill? What does the proposed law actually state? What are its legal implications? And how have people across the spectrum reacted to it? As will become clear, it is this proposed piece of legislation – more than any other in recent times – which has triggered the fresh elections to be held in 2015.
Therefore, it is vital to understand the bill by going through it, section by section.
Principle 1 — Purpose:
“Defining the identity of the State of Israel as the nation state of the Jewish people, and anchoring the values of the State of Israel as a Jewish and democratic state, in the spirit of the principles contained in the Declaration of the Establishment of the State of Israel.”
Emphasizes Israel’s role as the home of all people of Jewish faith, certainly born out of the desire to write their own destiny, a desire amplified after the Holocaust perpetrated by Nazi Germany during Hitler’s genocidal regime. The first principle also refers to Israel as a “Jewish and democratic state”. Probably the easiest reading of that twin phrase is that Israel is not supposed to be a theocracy, and that any citizen should have the opportunity to contest its elections (including the country’s Arab citizens) – all the while conferring a special status onto the Jewish faith in public life. Nonetheless, there has been a very lively debate regarding the meaning of the phrase – and whether the two characteristics “Jewish” and “democratic” inherently contradict one another. There certainly is no legal impediment to an Arab citizen of Israel serving in government, whether in the Knesset, as Prime Minister or President.
Principle 2 — Founding principles
A. “The land of Israel is the historic homeland of the Jewish people and the birthplace of the State of Israel.”
The Land of Israel is essentially a religious term taken directly from the Bible, and is to be distinguished from the “State of Israel” (essentially what we nowadays refer to as “Israel”). The territorial ambit of the Land of Israel basically depends on who you ask and which definitions in different parts of the Bible you wish to consult. In political terms, the founder and first Prime Minister of Israel, David Ben-Gurion, asserted that the State of Israel had only been constituted in part of the Land of Israel.
B. “The State of Israel is the national home of the Jewish people, in which it fulfills its right to self-determination according to its cultural and historic heritage.”
Once again, this sub-principle asserts the State of Israel’s political function as a home for all people of Jewish faith. It then also refers to its right to self-determination, harking back to the United Nations Charter (Art. 1(2)), the International Covenant for Civil and Political Rights (Art. 1)
C. “The right to the fulfillment of national self-determination within the State of Israel is unique to the Jewish people.”
Here’s a passage that strikes me as somewhat problematic. Whilst I understand that the State of Israel is founded on the historical rationale of providing a territorial protective space in which individuals of Jewish faith can realize their right to self-determination, why is this right exclusive only to “the Jewish people” (more on that in a bit). Why not the approximately 25% Arab citizens within Israel’s borders, as well as Christians and other religions? Surely, according to the Universal Declaration of Human Rights (Art. 15), they too, have a right to self-determination (strictly speaking, the fact that they are Israeli citizens and legally equal to Jewish citizens sufficiently demonstrates that said right has been realized for Arab-Israelis). And by the way, we’re speaking in the context expressed by third parties about discrimination against, declining voter turnout by and statements made by the country’s foreign minister essentially musing about financial incentives to get Israeli Arabs to leave.
D. “The State of Israel is a democratic state, established on the foundations of liberty, justice and peace in light of the vision of the prophets of Israel, and realizes the individual rights of all its citizens under law.”
Once again, the declaration emphasizes religious aspects, whilst remaining careful to underline individual freedoms of all its citizens.
Principle 3 — The symbols of the state:
- “The anthem of the State is “Hatikvah.”
- “The flag of the State is white, with two light-blue stripes near its edges and a light-blue Star of David in its center.”
- “The symbol of the State is the seven-armed candelabra, with olive branches on both its sides and the word “Israel” beneath.”
These are all relatively uncontroversial, and have little bearing on the debate about this law.
Principle 4 — Return:
“Every Jew has the right to immigrate to the land [Israel] and to receive the citizenship of the State of Israel under law.”
Principle 5 — Ingathering of the exiles and strengthening the ties to the Jewish people in the Diaspora:
“The State shall act to gather in the exiles of Israel and to strengthen the affinity between Israel and the Jewish communities of the Diaspora.”
Principle 6 — Aid to the Jewish people in distress:
“The State shall act to give aid to members of the Jewish people who are in distress and captivity because of their Jewishness.”
Principles 4 to 6: These principles codify policies and legal rights already existent under Israeli law. Whereas the right of immigration for all Jews has been codified in the 1950 Law of Return, the State has been given the responsibility to strengthen the links to Jewish communities worldwide and, if possible, facilitate their integration into Israeli society. Principle 6 is most notable for its ambiguity: What do the terms “give aid” mean? Are we referring to cultural and economic measures, or possibly military measures as well? Would Israel act to protect Jewish minorities in nearby countries? Further, the principle doesn’t clearly define the term “distress” – most importantly, who would determine the appropriate level of distress to trigger action by the State of Israel?
Principle 7 — Heritage:
- “The State shall act to preserve the cultural and historic heritage and tradition of the Jewish people, and to cultivate and foster them in Israel and the Diaspora.”
- “In all educational institutions serving the Jewish public in Israel the annals of the Jewish people, its heritage and tradition, shall be studied.”
- “The State shall act to enable all residents of Israel, without regard to religion, race or nationality, to act to preserve their culture, heritage, language and identity.”
Principle 7 is aimed at creating a cultural sphere of cohesiveness between Israel proper and the Jewish diaspora abroad. This is in line with other countries attempting to build bridges to their diaspora abroad (for instance, see India’s courtship of its citizens abroad, as well as Indian-origin foreign nationals; examples in point include Prime Minister Narendra Modi’s recent trips to Australia and the United States; other examples include Turkey under Recep Erdogan, who even held campaign rallies abroad and France (which has ten National Assembly seats elected by French overseas residents worldwide)).
What seems problematic is Principle 7B: Whilst it is aimed at the study of Jewish history, heritage and tradition, with its elevation to Basic Law status, it is reasonable to assume that these will be given a central role in the nation’s curricula. And what about opposing viewpoints? History depends on the eye of the beholder. And an Arab Israeli is likely to have a different point of view regarding the foundation of Israel and its military actions abroad than, say, a conservative Jewish Israeli. In fact, Judaism is split into different streams like moderate, Reform and Orthodox Judaism (and many other sub-sets). The word “shall” makes the study of Jewish history mandatory – for everyone. It extends to ambit to “all educational institutions serving the Jewish public”
Principle 8 — Official calendar:
“The Hebrew calendar is the official calendar of the State.”
Another interesting instance of a turn towards cultural conservatism. Currently, the Gregorian and Hebrew calendars exist side-by-side as the State of Israel’s official calendars.
Principle 9 — Independence Day and memorial days:
- “Independence Day is the national holiday of the State.”
- “Memorial Day for the Fallen in Israel’s Wars and Holocaust and Heroism Remembrance Day are the official memorial days of the State.”
Codification of national holiday
Principle 10 — Days of rest:
“The established days of rest in the State of Israel are the Sabbath and the holidays of Israel, in which no employee shall be employed except under conditions set in law. Members of recognized [religious] groups shall be allowed to rest on their rest days and holidays.”
Careful about acknowledging both the Jewish holidays and the rights of recognized minorities to celebrate their religious holidays.
Principle 11 — Hebrew law
“A. Jewish law shall serve as a source of inspiration for the Knesset”
B. “If a court faces a legal question that must be decided, and cannot find an answer in legislation, precedent or clear deduction, it shall decide the matter in light of the principles of liberty, justice, integrity and peace in the heritage of Israel.”
Principle 11A raises an interesting question: What status is traditional Jewish law within the country’s future legislation. Do laws have to pass a certain “religious adherence threshold” in order to be deemed in conformity with this Basic Law?
Principle 12 — Protection of holy places:
“The holy places shall be secure from desecration, from any other harm, and from anything that may hinder free access of the religious to the places holy to them, or offend their sentiments toward those places.”
The term desecration is clear, but what does “any other harm” mean? Yes, some of it may be derived from recent events which this provision is meant to address. However, even more problematic in a democratic country: How do you measure offence being taken by “the religious”? What level of offence to religious sentiments is required to secure holy places from it? Who are “the religious”? Everyday practitioners of the Jewish faith? Or only those which fulfil certain requirements? This principle remains silent on this issue.
Principle 13 — Denial of rights:
“The rights in the Basic Law shall not be denied except in a law that accords with the values of the State of Israel, that is intended for a fitting purpose and to an extent no greater than necessary, or according to such a law under the explicit authority contained within it.”
Enshrines the principles of proportionality in the principle governing the denial of rights granted in this set of principles.
Principle 14 — Rigidity
“This Basic Law shall not be changed except by a Basic Law passed by a majority of members of Knesset.”
Essentially provides the law with special status.
So, these were the Fourteen Principles presented by Prime Minister Netanyahu. These were among the central reasons for the collapse of the government – with Netanyahu’s own right-wing MPs wanting to push through some form of these tenets. It is noticeable that the proposed legislation’s scheme isn’t as clear-cut against the country’s Arab minority, as alleged by the law’s critics. However, the real difficulty lies in the ambiguity seemingly espoused by the principles – principal issues are not properly thought-through and defined in a legally robust manner. Several proposed principles stand in direct conflict with one another (most notably, the notion of a Jewish state and that of democratic government), which would probably make for a series of interesting rulings by the country’s Supreme Court – should litigation be pursued by the prospective bill’s opponents. Most worryingly, these legal lacunae may end up putting Israel on a slippery slope in regard to the treatment of its religious minorities.
But why now? Was there a pressing need to address this issue and risk the fall of the government? Well, the answer lies in the country’s fluid politics. Israel’s democracy is known for personalities set to dominate the political scene for decades, as well as many a miraculous revival (including Netanyahu’s own – after all, this is the man who left office after a landslide defeat and under a cloud of recriminations in 1999). One such person emerging on the horizon is a former internet entrepreneur by the name of Naftali Bennett. Bennett is essentially the conservative right’s youthful answer to Netanyahu – calm under pressure in his media appearances and yet uncompromisingly hard-line on security and foreign policy, Bennett appeals to those on the right wing of Israeli politics who believe that the likes of Netanyahu have been way too soft with the Palestinians. His ideas include a rejection of the two-state solution (see his latest NYT op-ed) and a policy of “separate development” for the Palestinians – that’s right, those are the words he himself used in an interview, seemingly unaware that this the exact same term used by the South African apartheid-era government for a legal construct which saw the creation of separate homelands (bantustans), which were nominally independent from South Africa. This rendered those countries’ “citizens” with the status of foreigners in South Africa – economically, those unrecognized entities were completely dependent on South Africa for their survival. So, when Naftali Bennett spoke those words, did he make a mistake or was he fishing for votes? Either way, his plan envisions the Palestinians receiving economic development assistance and self-government in Areas A and B of the Palestinian Territories (around 27%), whilst area C (73% of the Palestinian Territories, containing most of the West Bank) would be annexed by Israel.
Bennett’s party (Jewish Home) is currently second in the opinion polls and will indeed make a bid for power.
It would appear that Netanyahu is no longer content to have the young upstart and economy minister in his cabinet steal his thunder anymore. With the nation-state bill, so it seems, he is attempting to reclaim the mantle of political leadership in Israel. This is particularly interesting when one considers that in a fresh opinion polls, 60% of Israelis profess to wanting to see Netanyahu leave the prime minister’s residence – and the fact that his own approval ratings have precipitously declined to 38%. With Netanyahu championing the cause of a “more Jewish” Israel, the more interesting question (beyond his immediate political survival) would appear whether Israel will drift culturally rightward. Given the fractured nature of Israel’s parliament (there is merely a 3.25% threshold for a party to be in the Knesset, Netanyahu’s Likud (should it come first) doesn’t seem likely to secure an outright majority (a feat unheard of since the State of Israel’s foundation in 1948). It will most likely find willing coalition partners in the right-wing and ultra-Orthodox parties. But judging by the reactions to the nation-state bill, from the country’s president, to a former prime minister, to one of Israel’s minority ambassadors to other political parties to the foreign press, Netanyahu may have miscalculated.
Then again, he wouldn’t be the first politician to wind himself out of an impossible situation.