Editor’s note: The following article first appeared on Palestine Square, the blog of the Institute for Palestine Studies. It is an excerpted translation by Adalah of an interview that originally appeared in Arabic on Arabs48. The interview was conducted by Rami Mansour.
Adalah’s General Director, Attorney Hassan Jabareen offers a probing analysis of the “Basic Law: The Jewish Nation-State,” which, he argues, calls for a shift in how one conceptualizes the Israeli regime on both sides of the Green Line. He contends that the enactment of the law gives Palestinians everywhere the occasion to evaluate the Israeli regime based on its laws, not only its practices, and that the Israeli regime faces questions about its legitimacy following the enactment of this racist legislation.
Doesn’t the Jewish Nation-State Law just legislate practices that have existed since the Nakba?
Jabareen: True, the law affirms practices that have been in place since the establishment of the State of Israel in 1948, especially the Judaization of Palestine in terms of land, housing, language and culture, alongside the denial of the right of return and the establishment of Palestine as “Jewish land.” Many articles of the law are based on principles from the Declaration of the Establishment of the State of Israel of May 1948.
The Israeli Supreme Court has also affirmed these principles, particularly those relating to Israel as a “Jewish and democratic” state. However, the codification of these principles in a Basic Law, which has constitutional status, lends them greater legitimacy, and may compel the executive, judiciary and other authorities to enforce them as a legal duty, under the rule of law.
In other words, if these principles were previously applied for the sake of the political vision of the Zionist movement, the same will now be done in the name of the rule of law, as if it were with democratic authority in the sense of “majority power,” i.e. a parliamentary majority.
Therefore, we see the new law as an escalation of these practices against us as citizens, and against our people who live under occupation.
Can you elucidate the relation between Palestinian citizens in Israel and the rest of the Palestinian people regarding this law?
Jabareen: The law concerns all of the Palestinian people before it concerns us as Palestinian citizens of Israel. Firstly, the law reaffirms that East Jerusalem and the Syrian Golan, which are occupied under international law, are an integral part of the State of Israel. It subjects these areas to the constitutional identity of the Israel as a Jewish state, exclusively for Jews.
Secondly, the law clearly denies the right of return of the Palestinian refugees by declaring that the right of self-determination is for Jews only, and that immigration and citizenship is to be determined in accordance with the Israeli Law of Return.
Thirdly, and most importantly, the law negates the principle of the right of self-determination of the Palestinian people in any area in Palestine, by reaffirming Palestine as the “Land of Israel,” the homeland of the Jewish people, in which they alone enjoy the right to self-determination.
So, how does that affect the future of the Palestinian state in territories occupied since 1967?
Jabareen: Given the denial of the principle of the right of self-determination of the Palestinian people in the so-called “Land of Israel” in Article 1 of the Basic Law, it may be possible to grant certain individual rights to Palestinians in the occupied West Bank, for example, since it is not regarded as a clear part of the State of Israel. However, these rights cannot rise to the level of self-determination because the area remains part of the “Land of Israel.” Here the Palestinian people have no right to self-determination, including the right to establish their own state.
Thus, the broadest and most liberal interpretation of this law leads, at best, to autonomy for West Bank residents. Only Jewish settlers may realize their right to self-determination in the West Bank under the law by being a part of the State of Israel.
Will the law affect the daily lives of Palestinian citizens of Israel, or will it remain a “declaratory” law?
Jabareen: Firstly, as well as legislating existing practices, the law contains new legal provisions. In particular Article 7 of the law stipulates that the State of Israel should consolidate, develop and support the establishment of Jewish towns and settlements.
Here, the law contradicts previous court rulings. In the Qa’dan case, the Israeli Supreme Court rejected the principle of expanding or encouraging the establishment of Jewish towns as a pretext for excluding and discriminating against Palestinian citizens of the state. The court said that the land should be distributed and planned within the Green Line on the basis of equality. Although the Court’s decision was not implemented on the ground and consecutive Israeli governments failed to respect it, as evidenced by the displacement of the Bedouin village of Umm al-Hiran in the Naqab (Negev), the Qa’dan case was nevertheless a judicial precedent.
Now, however, Article 7 of the Basic Law alters the legal status quo by legitimizing land allocation and planning, as it existed prior to Qa’dan.
The new law also makes it possible to justify blatant discrimination in budgets between the Arab and Jewish local authorities, at least based on Article 7, on the claim that Jewish towns absorb Jewish immigrants. And, given the principle of promoting Jewish towns, their status cannot be the same as Arab local authorities. This case of budgets is just one example of the law’s implications at the collective level.
Secondly, Article 7 will also lead to discrimination at the individual level, since the state can claim that economic incentives may be granted only to Jewish individuals to encourage them to settle in the Galilee or the Naqab.
Thirdly, the new Basic Law could legitimize the Prawer bill, which aims to displace Bedouin Palestinians from unrecognized villages in the Naqab to government-planned Bedouin townships. It would be legitimate to displace them under Article 7, as an act of furthering the Judaization of the Naqab.
Fourthly, because Article 7 does not stipulate that it applies only within the Green Line and Article 1 of the law states that the “Land of Israel” is the historical homeland of the Jewish people, the law could be interpreted as permitting, legally, the expansion and building of Jewish settlements in the West Bank… Importantly, there is no law or any caselaw that justifies the expansion of and building in the Jewish settlements in the occupied West Bank. To date, the Israeli Supreme Court decided that the question of the settlements is political, and not legal. However, Article 7, together with Article 1, could provide this new legal justification.
Finally, how does the law mirror constitutional changes in Israel? Has the state become a fascist regime, or even a colonial regime?
Jabareen: The Basic Law defines the nature of the constitutional order of the State of Israel and articulates its constitutional identity. So, practically speaking, it is “the law of laws.”
Therefore the law gives us a new opportunity to define the Israeli regime according to its laws and not only in relation to its practices, both in Israel and in the 1967 Occupied Territories. As Adalah wrote in its position paper, the law clearly shows how the Israeli regime is a colonial system of apartheid, in violation of the Apartheid Convention, which considers apartheid a crime against humanity.
Hence, in Adalah’s view, the legal discourse within the Green Line and in the 1967 Occupied Territories has to change. We must all state clearly that the regime is a colonial, apartheid system, not merely a deficient democratic system or an ethnic democracy for Jews only.
Remember that the PLO adopted the discourse that Israel is a democratic state but an occupying power in the territories that it occupied in 1967. There are Palestinian academics and activists in Israel who are highly professional and have a strong nationalist outlook, but continue to describe the Israeli regime as an undemocratic system or a defective democracy that must improve itself by applying the principle of equality among citizens.
Adalah believes that this academic and political discourse must change. We must state before the international community that the Israeli regime within and outside of the Green Line is a colonial system that is so obviously in contravention of international law that a serious question mark hangs over its very legitimacy. A deficient democratic regime is still a legitimate regime, while a colonial regime, under international law, lacks legitimacy.