Advocates for a “Jewish and democratic” state admit that even if the occupation of the Palestinian territories ended and there emerged a separate independent Palestinian state alongside Israel, a “Jewish and democratic” state would still necessarily privilege Jewish (75%) over non-Jewish (25%) citizens of the state of Israel: in its symbols (national flag and anthem), in its national holidays, and, above all, in its immigration policy.
Although the desire for a Jewish state is understandable in a post-holocaust world, the use of ethnic discrimination that is necessary to achieve and maintain the dominance of a Jewish majority in the country over all others is problematic. In a 2010 interview, Peter Beinart—as liberal a Zionist as you’ll find—said: “I’m not even asking [Israel] to allow full, equal citizenship to Arab Israelis, since that would require Israel no longer being a Jewish state. I’m actually pretty willing to compromise my liberalism for Israel’s security and for its status as a Jewish state.”
What Peter Beinart would say is the “Jewish and democratic” state must take care to extend full and equal rights and privileges in all spheres of life—except to the extent necessary to maintain the state as a “Jewish state.” The problem is, however, once you accept unequal treatment of citizens based on ethnicity and religion in some respects, it becomes a slippery slope. Where do you draw the line?
In 2012, Adalah, the legal center for Arab minority rights in Israel, published a report, The Discriminatory Laws Database, which collected and analyzed more than 50 laws “enacted since 1948 that directly or indirectly discriminate against Palestinian citizens of Israel in all areas of life.” The database appears to be updated.
Looking at this database, we should not get hung up on the number “50.” Many of the laws discussed are not discriminatory on their face, but were apparently passed with discriminatory intent, and have been administered in a discriminatory manner. There is no constitutional clause for equal protection under the law to appeal to in Israel. Still some of this can potentially be fixed. But some discrimination, as Beinart noted, is inherent in a state that defines itself based on ethnicity and cannot be fixed.
Here is a review of some of the patently discriminatory laws that are identified in the Adalah Database
The most serious discriminations were established early and relate to land control and citizenship. First, the state took over and controlled approximately 93 percent of all lands within the 1949 cease fire lines, and the state has subsequently used this land preferentially for its Jewish majority by making land available to Jews for development, and denying building permits and the ability to develop land to Palestinians. Second, the state established discriminatory preferences about who could immigrate, return to, or stay—in short belong—in the land as a citizen.
- 1950 law about confiscation of Absentee Landlord Property. This law defines persons who were expelled, fled, or who left the country after November 29, 1947 as “absentee.” Property belonging to “absentees” was placed under the control of the State of Israel with the Custodian for Absentees’ Property. The Absentee Property Law was the main legal instrument used by Israel to take possession of the land belonging to the internal and external Palestinian refugees, and Muslim Waqf properties across the state. This law continues to be used to this day by quasi-governmental agencies in Israel to take over Palestinian properties in East Jerusalem, for example.
- 1950 Law of Return. This allows every Jewish person to immigrate to Israel and this extends to the children and grandchildren of Jews, as well as their spouses, and the spouses of their children and grandchildren. The flip side of this is that the rights of Palestinians and others to enter the state and become citizens, even if they were born in the area that is now the State of Israel, are extremely restrictive. This discrimination against the non-Jewish minority has been periodically reinforced. For example, the ban on family unification law of 2003 prohibits citizens of Israel from reuniting with Palestinian spouses living in the West Bank or Gaza.
- In 1952 the state authorized the World Zionist Organization, the Jewish Agency, and other Zionist bodies founded at the turn of the 20th century to function in Israel as quasi-governmental entities in order to further advance the goals of the Zionist movement, to the detriment of minorities.
- The Land Acquisition Law of 1953 transferred the land of 349 Arab towns and villages—approximately 1.2 million dunams in all (~468 square miles)—to the state to be used preferentially for the Jewish majority.
- In 1953, the Knesset bestowed governmental authorities on the Jewish National Fund (JNF or Keren Kayemeth LeIsrael) to purchase land for exclusively Jewish use. The state granted financial advantages, including tax relief to facilitate such purchases.
- In 1960, the state passed a law which stipulates that the ownership of “Israel lands”—namely the 93% of land under the control of the state, the Jewish National Fund, and the Development Authority—cannot be transferred in any manner.
Although most Palestinians that remained in 1949 were granted Israeli citizenship, they were subject to martial law until 1966. Travel permits, curfews, administrative detentions, and expulsions were part of life until 1966. Once Palestinians were relieved from martial law, laws were passed to clearly define the primacy of ethnically Jewish Israelis.
- In 1969, the state passed a law that gave statutory recognition to cultural and educational institutions, and defined their aims, inter alia, as developing and fulfilling Zionist goals to promote Jewish culture and education at the expense of minority goals.
- There is a law mandating that Knesset session must be opened with a reading of portions of Israel’s declaration of independence that emphasizes the exclusive connection of the state of Israel to the Jewish people.
- There is a law that bans any political party that denies the existence of Israel as a “Jewish” state. In other words, a party that would advocate equal rights for all citizens of Israel irrespective of ethnicity would not be allowed to enter the Knesset.
- There are laws that establish separate educational systems which are then unequally administered.
More recently, the Knesset has passed laws to defend against efforts to bring the Palestinian minority onto a more equal footing.
- In 2011 the Knesset passed a law that empowers hundreds of local Jewish communities to exclude applicants based on ethnicity or religion. The Supreme Court upheld this law in September 2014.
- In 2011 the Knesset passed a law prohibiting anyone from calling for a boycott of Israel, its institutions, or any person because of their affiliation with Israel, including the settlements in the occupied territories. The law creates a private right of action for persons targeted by a boycott to sue for damages. As Noam Sheizaf puts it: “You can boycott anything in Israel except the occupation.” This vague law is blatantly aimed at Palestinians who are supportive of the BDS movement—while it allows people like Avigdor Lieberman to call for boycott of Arab owned businesses with impunity. The law was upheld by Israel’s Supreme Court on April 15, 2015.
As demonstrated by its decision upholding the boycott law, the Supreme Court of Israel has failed to stem the ever rightward tilt of the Israeli polity.
This post first appeared on Roland Nikles’s blog. Readers should know that Peter Beinart, in an appearance last week in New York, said that he had studied the Adalah list of discriminatory laws and said that many of them should be changed to create equality, though he drew the line at a “thin” degree of Jewish privilege, including national holidays and the Jewish symbol on the flag.