Israel’s nation-state law and the limits of solidarity

August 29, 2018

The nation-state law has exposed the contradiction of Israel’s supposed democracy and its denial of equal rights — and the fallacies of liberal Zionism, writes Daphna Thier.

THE RECENT passage of Israel’s odious nation-state law has unleashed a torrent of criticism from a broad cross-section of Israeli commentators, political figures and activists shocked by the law’s hostility to fundamental democratic ideas of equality before the law.

But the August 11 gathering of roughly 30,000 people in Tel Aviv for a protest against the law unleashed a whole new round of condemnation — this time directed at a handful of protesters who dared to raise Palestinian flags during the event. Prime Minister Benjamin Netanyahu himself took the opportunity to tweet that this act proved the very necessity of the law.

The protest call was issued by the Palestinian Arab Higher Monitoring Committee. Twenty-six other organizations heeded the call, among them Meretz Party members, Peace Now, the Association for Civil Rights, Adalah (the Legal Center for Arab Minority Rights in Israel) and others.

The demonstration was, however, boycotted by a number of prominent center and center-left Zionists, Yesh Atid and the Zionist Union parties in particular, as well as Labor Party leaders.

Protesters rally in Tel Aviv against Israel’s nation-state law
Protesters rally in Tel Aviv against Israel’s nation-state law

The protest came on the heels of another Tel Aviv demonstration led by the Druze community, which was attended by 90,000 people, and a smaller demonstration in late July of 150 Palestinians and Jews in Lydda connecting the recent surrogacy law that discriminates against LGBT Israelis with the ideas embedded in the new nation-state law.

The various aspects of the controversy illustrate why an ethnocratic state cannot extend full democratic rights to all its citizens — and shows how those who wish to defend the “democratic aspects” of Israeli society stumble over this contradiction.

THE NEW law is a “Basic Law” that establishes the Israeli state as the nation-state of the Jewish people. In Israel, Basic Laws in effect represent an Israeli constitution and require a supermajority in Israel’s Knesset (parliament) to change.

The nation-state law defines the land of Israel as the historic homeland of the Jews, who alone have the right to self-determination within it. This, of course, runs counter to international laws protecting the rights of Indigenous peoples to self-determination.

Jewish settlement is thus defined as a “national value,” and the state pledges to cultivate its growth. The right of return is stipulated as Jewish, and the law further establishes the state’s commitment to the well-being of Jews internationally. The law also declares Jerusalem, undivided, as Israel’s capital; the official language as Hebrew (Arabic is given “special status”); the official calendar as Zionist and Jewish; the flag of Israel as the only flag; and Hatikvah as the state’s anthem.

In terms of the day-to-day functioning of Israeli society in the short run, this law changes very little. What it does do is codify into official law — and place in stark relief — the undemocratic character of the Israeli state and the second-class status of Palestinian citizens.

Netanyahu’s long reign in Israeli politics and his right-wing government have stripped Israel of any liberal or democratic facade that it once could claim. Perhaps most importantly, the law outright rejects the right to self-determination of Indigenous minorities. Separate and unequal, apartheid is legalized, and even the pretense of equal citizenship erased.

The gravest danger is that the nation-state law paves the way for many more apartheid laws and the further expansion of legal discrimination against Palestinian and non-Jewish citizens.

Because of this, it is of great significance that Palestinian citizens of Israel made their way in the thousands to the August 11 protest in Tel Aviv, and that Israeli Jewish organizations and parties of the Zionist Left came out in solidarity. It is also a unique occurrence in the history of Israel that a Palestinian call is answered by thousands of Zionists.

THERE ARE several reasons that this law has sparked broad opposition within Israel, but for liberal Zionists, both in Israel and abroad, the primary concern is that the law is an embarrassment. Within Israel, 40 former diplomats and ambassadors have written a statement addressed to Netanyahu in opposition to the law.

“In the years of our service for the state of Israel, we could always say unwaveringly and with clear conscience to the nations of the world, that Israel is both the only democracy in the Middle East and a proud Jewish state,” they wrote.

Professor Karine Nahon, who is an information scientist and an influential liberal thinker in Israel, wrote in late July for Ynet:

Israel is the nation state of the Jewish people. We didn’t need the law to remind ourselves of the reality: a great state that was built with price of blood and the hard work of the pioneers and immigrants who came here from all around the world to realize the national dream of the Jewish people in its homeland. Over that there is no argument. What’s bad about the law isn’t what is in it, but what it lacks — the element of democracy that balances the national element.

According to Israeli political scientist Dahlia Scheindlin, the Monthly Peace Index conducted a poll asking Israelis if they thought the law was necessary. Their sample included Palestinians, who make up 20 percent of Israel’s population.

In their poll, only 45 percent thought there was a need for the law. Even among right-wing Zionists, 38 percent thought the law was superfluous. In fact, Scheindlin herself conducted four focus groups among self-defined center-right Israelis, and most agreed that the law changed nothing, and was perhaps an unnecessary provocation.

In the U.S., the opinions of liberal Zionists were similar. Writing for Ynet, Carrie Rubinstein interviewed New York City Rabbi Ammiel Hirsch, who she described as “an enthusiastic Zionist.” He called the last few weeks “a catastrophe,” explaining that the nation-state law “presents a serious problem.” “The law is perceived as racist by Israel’s critics, and therefore makes it harder for the rest of us to defend Israel,” he said.

In an opinion piece for the New York Times, Ronald Lauder, president of the World Jewish Congress, put the dilemma facing Israel in stark terms:

[T]he main challenge facing the Jewish diaspora is a deep — and deepening — generational divide. All over the world, and especially in North America, Jewish millennials are raising doubts that their parents and grandparents never raised...If present trends persist, young Jews might not acquiesce to an affiliation with a nation that discriminates against non-Orthodox Jews, non-Jewish minorities and the L.G.B.T. community. They may not fight the boycott, divestment, sanctions movement, they may not support Israel in Washington and they may not provide it with the strategic rear guard that Israel so needs.

LAUDER AND other like-minded liberal Zionists like to think that the nation-state law represents a perversion of Zionism, yet some of the most esteemed Israeli legal scholars in the liberal camp have long considered the various provisions of the nation-state law valid according to Israeli legal precedent.

Palestinian Israeli lawyer Amir Fahori argued in his recent piece for the Israeli left-wing publication Sicha Mekomit that none other than Professor Aharon Barak, a liberal jurist who served as president of the Supreme Court of Israel from 1995 to 2006, has himself argued that the Jewish State is indeed the state of the Jewish nation. This natural right involves “the right of every Jew to ascend to Israel” and the principle of the right of Jewish return, according to Barak.

Barak also believes that Israel’s primary language is Hebrew; Hatikva, the national anthem; the blue and white flag, the Israeli flag; and that the settlement of Jews in Israel’s lands should be of primary concern to the state — all clear echoes of the wording of the nation-state law that Lauder and his fellow liberal Zionists would like to disavow.

Another indicator of the limits of liberal Zionist opposition to the nation-state law is revealed by the differing reactions to the Druze protest and the Palestinian protest against the law. Liberal Zionists considered the Druze opposition to the law acceptable, while the Palestinian protest was deemed “too radical” and boycotted by many in the center and liberal Zionist camps.

The Druze protest a week earlier than the Palestinian protest was three times larger. It drew in members of the center-left and center-right parties as well as former heads of the military and security apparatus, including the former Chief of the General Staff Gabi Ashkenazi, two former heads of the Mossad, the former head of Israel’s Security Agency and others.

This is because the Druze have historically constituted a very loyal section of the non-Jewish population in Israel. Again and again, the speakers and organizers of the protest lamented that the law would subject citizens who had obediently served in the Israel Defense Forces (IDF) to legal discrimination.

In fact, the Druze leadership even pledged to support the law if it was amended to guarantee a special status for the Druze and the Circassian communities, in recognition of their contribution to building and defending the Israeli state. In particular, they sought the state’s commitment to their settlements and the preservation of their culture and heritage.

The Druze demands predictably only went so far, calling for a legally sanctioned status for those minorities who serve in the IDF and the guaranteed rights of those peoples. Notably, these rather mild addendums did not imply any protections for the largest minority in Israel — the Palestinians, who are exempt from compulsory military service in the IDF.

And even though Netanyahu refused to repeal or amend the law, the Druze leadership impressed upon younger Druze soldiers and officers that they should not call into question their service or threaten to withhold it because of the passage of this discriminatory law.

THE PALESTINIAN demonstration had a decidedly less mainstream character to it, though the organizers did put out a call asking people not to bring flags of any kind to the protes,t so as not to alienate the remnant of left-wing Zionists willing to contemplate support for the demonstration.

When some raised the Palestinian flag anyway, some argued that it led to “positive conversations” between Jewish Israelis and Palestinians about the intent behind flying the Palestinian flag, but the appearance of the flags alarmed many left Zionists. To them, the law concerns the place of minority communities in Israeli society, not Palestinian self-determination.

And this is precisely where the rupture lies: the consistent inability and unwillingness of most of the Zionist left to accept the full implications of Palestinian self-determination, which connects Palestinians inside Israel to Palestinians living in Gaza and the West Bank as well as in the wider diaspora of refugees.

Israelis consider Palestinians within 1948 borders to be Israeli Arabs — in order to distinguish them from those in the West Bank or Gaza. However, it is the inseparable relationship between these groups of Palestinians that undermines any prospect for a “simple” two-state solution to remedy the conflict.

While some Israeli leftists rightly celebrated the waving of Palestinian flags in Tel Aviv, the very fact that the flags represented a red line for the Zionist left should tell us something about the limits of their solidarity.

The truth is that unfettered self-determination is at odds with the Jewish character of the state. And that’s what this law exposes: democratic rights and ethnocratic rights cannot go hand in hand.

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