Israel does not have a formal written Constitution as yet. Instead, what are called “Basic Laws”, each of which is supposed to form a chapter of the Constitution, are adopted by the Israeli Knesset (Parliament) from time to time. The drafting of a “Basic Law” was to be guided by the principles enunciated in the Declaration of Independence, which was adopted at the time of the formation of Israel on May 14, 1948. Until 2017, 13 such “Basic Laws” had been enacted, including one in 1992 on “Human Dignity and Liberty”, which sought to incorporate “the values of the State of Israel as a Jewish and democratic state”. What exactly is meant by “Jewish and democratic state”? A state could either be “Jewish” or “democratic”; how could it be both at the same time?
‘Jewish’ or ‘Democratic’?
According to the explanation offered on the web portal “Constitution for Israel”, a joint project of the Knesset and the Jewish Agency for Israel:
“The tensions inherent to ‘Jewish and Democratic’ are both theoretical and practical. At the theoretical level, the challenge is to reconcile two very different traditions. The one is rooted in religion faith, the other is secular in nature; one is a nationalistic tradition, focused on the preservation of a particular people, the other focuses on the equal worth of all human beings; one is exclusive and communal, the other inclusive and universal. The practical challenges stem from two main sources. First, non-Jewish ethnic groups, most notably Israeli Arabs, make up one fifth of Israel’s population. Second, even among Jews, the meaning of Judaism, Jewish heritage, and Jewish values is highly controversial. The question then arises: Can a state that explicitly defines itself as a Jewish state also respect the fundamental democratic value of equal citizenship to all? How does the Jewish national identity and collective ethos of the state affect the individual identities of citizens who cannot or do not share in this identity? Who will define what Judaism is and means in modern-day Israel?”
After posing these above questions, the said web portal has tried to provide answers as follows:
“Israel’s Jewish and democratic values are both grounded in its existing constitutional documents. In the Declaration of Independence, Israel’s founders proclaimed both the Jewish and democratic nature of Israel.”
Unfortunately, the new “Basic Law” has brought about a profound change in this apparently contradictory interpretation of the nature of Israel: it is no longer “Jewish and Democratic” but has been pruned to being just “Jewish”, which reveals its real character. On July 19, 2018, the Israeli Knesset, after a stormy debate, passed the so-called Jewish nation-state bill, which was tabled in 2011, into law by a vote of 62 in favor and 55 against with two abstentions. The new law has turned Israel, which was for long accused of practicing apartheid, statutorily into an Apartheid State. What was known as “The State of Israel” at the time of its self-proclaimed independence has, thus, become “The Nation State of the Jewish People”! The essential difference between the two nomenclatures would become clearer by comparing the description of “The State of Israel” as stated in the Declaration of Independence with the description of “The Nation State of the Jewish People” as stated under the new law. In the declaration that was made at the time of the establishment of the State of Israel, it was explicitly stated as follows:
“The State of Israel… will foster the development of the country for the benefit of all its inhabitants; … it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations…. We appeal… to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.”
Please note that while the Declaration of Independence dated May 14, 1948 had ostensibly tried to “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex” and “to the Arab inhabitants of the State of Israel… full and equal citizenship and due representation in all its provisional and permanent institutions”, the new law that was enacted on July 19, 2018 brazenly states that:
“The actualisation of the right of national self-determination in the state of Israel is unique to the Jewish people.” [Article 1(c)]
As per the new law, there is no pretence of ensuring “complete equality of social and political rights to all its inhabitants”; the question of providing “full and equal citizenship” rights to the “Arab inhabitants of the State of Israel” just did not arise. As Amir Fuchs,head of the Defending Democratic Values program at the Israel Democracy Institute (Jerusalem), has commented in The Jerusalem Post:
“Clearly, the bill’s real goal is to sabotage the existing ruling of the Supreme Court, according to which Israel’s status as a nation-state does not imply that Jewish citizens have privileges which other citizens do not. There is no better proof for this than the explicit opposition to including the right to equality in the bill.”
To underline the Jewish character of the Israeli State, all the “National Symbols”, as enunciated in Article 2 of the new law, are all Jewish symbols.
Israeli flag in Jerusalem which has been declared as the capital of the new ‘Jewish State’ despite its legally contentious character.
Jerusalem as Capital
Another extremely controversial decision enunciated in the latest “Basic Law” is Article 3, which states as follows:
“[The] unified and complete [city of] Jerusalem is the capital of Israel.”
It may be recalled that as per the UN Partition Plan of 1947, Jerusalem, which was then inhabited by almost equal number of Palestinians (51%) and Jews (49%), was to remain as an international territory under the jurisdiction of the United Nations until the issue was amicably resolved. However, after the 1948 conflict, Western Jerusalem remained under the occupation of Israel and Eastern Jerusalem remained under the occupation of Jordan. Later, after the 1967 conflict, East Jerusalem too was occupied by Israel and, thus, entire Jerusalem remains under the control of Israel till date. The UN Security Council, which is seized of Israel’s precipitate action, has through numerous resolutions highlighted the “inadmissibility of the acquisition of territory by force”. These resolutions have time and again condemned:
“all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions”.
The said UNSC Resolutions have also expressed “grave concern that continuing Israeli settlement activities are dangerously imperiling the viability of the Two-State solution based on the 1967 lines” and condemned “all acts of violence against civilians, including acts of terror, as well as all acts of provocation, incitement and destruction”.
In the latest Resolution in this regard, S/RES/2334 (2016) dated December 23, 2016, the UNSC:
- Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the Two-State solution and a just, lasting and comprehensive peace;
- Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard;
- Underlines that it will not recognise any changes to the June 4, 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations;
- Stresses that the cessation of all Israeli settlement activities is essential for salvaging the Two-State solution, and calls for affirmative steps to be taken immediately to reverse the negative trends on the ground that are imperiling the Two-State solution; …”
What is also significant is that while 14 of the 15 UNSC members supported the above Resolution, the United States did not contest any of the facts in it and only abstained from casting its vote. It is in complete defiance of the numerous resolutions passed by the UN that Israel is now attempting to legalise the occupation of Jerusalem.
The abrupt move on the part of the Zionists to legitimise the occupation of Jerusalem is also intended to effectively bury the “Two-State Solution”, which the UNGA on several occasions since 1967 has affirmed as the key step to resolve the Israeli-Palestinian conflict. Through Resolution A/RES/72/14 dated November 30, 2017, the UNGA has again reiterated that it:
“1. Reaffirms the necessity of achieving a peaceful settlement of the question of Palestine, the core of the Arab-Israeli conflict, in all its aspects, and of intensifying all efforts towards that end, and stresses in this regard the urgency of salvaging the prospects for realising the Two-State solution of Israel and Palestine, living side by side in peace and security within recognised borders, based on the pre-1967 borders, and making tangible progress towards implementing that solution and justly resolving all final status issues;…”
By the thoughtless manner in which they have attempted to enact the new law, it is evident that the Zionists are not only opposed to the “Two-State Solution” but are also opposed to the creation of a single unified democratic Palestine, where both Jews and Palestinians would enjoy equal citizenship rights. On the contrary, all that the Zionists are interested in creating is a Jewish-dominated Apartheid State of Israel where Palestinians, without citizenship rights, would be confined to 165 disconnected “islands”, i.e., isolated Bantustan enclaves — each of which is surrounded by Israeli security forces.
(As of now, Palestinians can move from one enclave to another only through check-points — that are open only for certain hours each day — with requisite identification documents. How complicated is everyday life for the Palestinians in the occupied territories can be gauged by the fact that their home, farmland, workplace, school, market, health clinic, etc., are most often located in different enclaves and crossing several check-points during different time periods each day becomes a harrowing experience. For detailed background information on the situation in the occupied territories of Palestine see the three-part article titled “Seething With Rage: The Palestinian Saga” .)
Controversy over language
Yet another contentious issue pertains to “the Language of the State of Israel”. It is enunciated in Article 4 of the new “Basic Law”, which states as follows: “Hebrew is the language of the state” [Article 4(a)] and “the Arabic language has a special status in the state…” [Article 4(b)]. On the contrary, the status of Hebrew and Arabic until recently, as the semi-official website Constitution for Israel notes, was as follows:
“Israel’s two official languages are Hebrew and Arabic, and all ordinances, official government forms and documents must be presented in both languages. The state broadcasts radio and television news in both languages, and a Member of Knesset may address the plenum in either language. The educational system is divided as well, with some schools taught in Arabic, and other schools taught in Hebrew.”
Offering further explanation in this regard, the same website states that:
“Israel currently has two official languages: Hebrew and Arabic. This legal status derives historically from Britain’s Palestine Mandate of 1922, which stated in Article 22, ‘English, Arabic, and Hebrew shall be the official languages of Palestine. Any statement or inscription in Arabic on stamps or money in Palestine shall be repeated in Hebrew, and any statement or inscription in Hebrew shall be repeated in Arabic.’…. In 1948, Israel enacted the Law and Administration Ordinance, which adopted laws prevailing in the country at 1948 (including British Mandatory law) as Israeli law, with several amendments and exceptions. Section 15(b) specified that, ‘Any instruction in the law requiring the use of English is hereby annulled.’ This left Israel with two official languages to this day.”
As is apparent from the above explanatory note, Hebrew and Arabic had enjoyed equal status until the enactment of this new law. Therefore, there is absolutely no doubt that the decision to lower the status of Arabic vis-à-vis Hebrew was an unwarranted controversy that has been deliberately raked up by the Zionists to hurt the sentiments of the Arabic-speaking Israeli population and to set them apart as being less than equal to their Hebrew-speaking counterparts. Under the circumstances, it is amply evident that insertion of Article 4(c), which states that “This clause does not change the status given to the Arabic language before the basic law was created”, is a mere afterthought and a completely false assertion in order to make it appear that no changes have been made in the status of Arabic.
Right of return
In order to re-emphasise that the right of return will be confined only to those people of Jewish origin, Article 5 of the new law states that: “The state will be open to Jewish immigration and to the gathering of the exiled”. As early as July 5, 1950, the Israeli Knesset had enacted a law called the “Law of Return”, which had clearly laid out in Article-1 that: “Every Jew has the right to come to this country as an oleh” [oleh = a Jew immigrating into Israel].
Ipso facto, all Palestinians, who were exiled from their homeland when the Zionists forcibly occupied the same in 1948 and subsequently in 1967, have been denied the right to return to their place of birth. Over 750,000 Palestinians were exiled in 1948 and over 300,000 in 1967. The exiled Palestinians and their decedents, most of whom are living as refugees in the neighbouring countries and whose number has swelled to nearly 5 million in 2018, have been denied the right to return to the land of their ancestors; whereas the purported decedents of Jews, who were exiled from Palestine by the Romans over 2000 years ago, and all those non-decedents, who have converted to Judaism, have been automatically granted the right of return and settle in Israel.
Denying the Palestinians the right to return was completely contrary to the suggestion, which the UN Mediator on Palestine — Folke Bernadotte, had put forward to the contending parties on June 27, 1948 and which was subsequently submitted to the UN Secretary General on September 16, 1948 for transmission to the members of the United Nations. As part of his detailed submission, Folke Bernadotte had clearly suggested as follows:
“That recognition be accorded to the right of residents of Palestine who, because of conditions created by the conflict there have left their normal places of abode, to return to their homes without restriction and to regain possession of their property.” [Section III, para 5(9)]
Infuriated by his attempts to find a just solution to the Israeli-Palestinian conflict, one of the leading Zionist organisations called Lehi assassinated Folke Bernadotte, the UN Mediator, in Jerusalem the very next day after he had made the above submission to the United Nations. Therefore, there is hardly any doubt that enactment of the Law of Return in 1950 was part of a contrived plan to prevent the exiled Palestinians from returning to their homeland while facilitating the immigration of Jews, most of whom even remotely are very unlikely to be related to those Jews, who were exiled from Palestine 2000 years ago.
Article 5 of the new law enacted in 2018 is intended to reinforce the said Law of Return, which unmistakably underlines the Apartheid nature of the law. Article 6 of the new law in content and intent is almost an extension of Article 5 although there were apparently some internal differences on its final wording.
Demonstrators attend a rally to protest against the ‘Jewish Nation-State Bill’ in the Israeli coastal city of Tel Aviv on July 14, 2018. – The Jewish Nation-State Bill is a draft Basic Law with constitutional weight that declares that Israel is the nation-state of the Jewish people. (Photo by JACK GUEZ / AFP/Getty Images).
Legitimising Israeli settlements
According to Article 7 of the new law: “The state views Jewish settlement as a national value and will labour to encourage and promote its establishment and development.” Illegal Jewish settlements, which were established beyond the Green Line (the demarcation line set out in the 1949 Armistice Agreement after the 1948 Arab-Israeli War/ also known as the pre-1967 borders) by Jewish settlers in East Jerusalem, Gaza and West Bank, have been a constant source of tension between Palestine and Israel especially after 1967. In 2005, the Israeli government forcibly dismantled all the 16 Jewish settlements from Gaza and 4 from the West Bank. However, there has been rapid growth of illegal Jewish settlements in East Jerusalem and the West Bank since then. From 1967 to the end of 2016, over 127 Jewish settlements with Israeli Government’s authorisation and another 100 such settlements without authorisation (but with Israeli Government’s connivance) have been set up in the illegally occupied territories of the West Bank.
East Jerusalem too suffers from a similar fate. As per the latest available information, almost 600,000 Israeli citizens currently reside in settlements; about 208,000 of these live beyond the Green Line in Jerusalem. Concomitantly, over 100,000 Palestinian homes have been demolished since 1948 in Israel and in the occupied territories to facilitate the expansion of Jewish settlements. According to the Israeli Centre for Human Rights in the Occupied Territories (B’Tselem):
“The settlements are the single most important factor in shaping life in the West Bank. Their destructive impact on the human rights of Palestinians extends far beyond the thousands of hectares, including farmland and grazing areas that Israel appropriated from Palestinians in order to build them [the settlements]. More land has been expropriated to pave hundreds of kilometers of roads for settler use only; roadblocks, checkpoints, and other measures that limit Palestinian movement only have been erected based on the location of settlements; Palestinian landowners have been effectively denied access to much of their farmland, both within settlements and outside them; and the winding route of the Separation Barrier, which severely violates the rights of Palestinians living near it, was established inside the West Bank in order to leave as many settlements as possible — and large tracts of land for expanding them — on the western side of the barrier.”
As B’Tselem has noted further:
“The existence of settlements also leads to the violation of many human rights of Palestinians, including the rights to property, equality, an adequate standard of living and freedom of movement. In addition, the radical changes that Israel has made to the map of the West Bank preclude any real possibility of establishing an independent, viable Palestinian state in fulfillment of the right to self-determination. Although the West Bank is not part of Israel’s sovereign territory, Israel has applied most of its domestic laws to the settlements and their residents. As a result, the settlers enjoy almost all the same privileges as citizens living within Israel. Meanwhile, Palestinians continue to live under martial law and are thereby systematically deprived of their rights and denied the ability to have any real impact on policymaking with respect to the territory in which they live.”
Therefore, the enactment of the new law “to encourage and promote … establishment and development” of more Jewish settlements in East Jerusalem and the West Bank would only result in further infringement of the rights as well as cause further impediments to the well-being of the Palestinians. As noted above, the existing illegal settlements themselves have had such adverse impact on the lives of the Palestinian people. Therefore, it is amply evident that the decision to promote the establishment of more and more Jewish settlements beyond the Green Line has been taken in order to encourage direct confrontation between the illegal Jewish settlers and the local Palestinian people.
[Articles 8 to 11 do not require any specific comments.]
In short, the enactment of this new “Basic Law” has grave implications; the active policy of segregation and discrimination has now been entrenched into Israeli law.
Discriminatory laws
Since its establishment, successive Israeli governments have been regularly enacting legislations that exclude, ignore, and discriminate against the Palestinian Arab minority, which has resulted in unequal status and unequal treatment of Jewish and Arab citizens. According to the Legal Centre for Arab Minority Rights in Israel (Adalah), there are over 65 other Israeli laws that discriminate directly or indirectly against Palestinian citizens in Israel and/or Palestinians residing in the Occupied Palestinian Territory comprising West Bank, Gaza, and East Jerusalem. The discriminatory nature of these laws is either explicit — “discrimination on its face” — or, more often, the laws are subtly worded so that they have a disparate impact on Palestinians in their implementation. These laws limit the rights of Palestinians in all areas of life, from citizenship rights to the right to political participation, land and housing rights, education rights, cultural and language rights, religious rights, and due process rights during detention. Therefore, Adalah could not but conclude that:
“These new laws and bills seek, inter alia, to dispossess and exclude Palestinians from the land; turn Palestinians’ citizenship from a right into a conditional privilege; undermine the ability of Palestinian citizens of Israel and their parliamentary representatives to participate in the political life of the country; criminalize political expression or acts that question the Jewish or Zionist nature of the state; and privilege Israeli Jewish citizens in the allocation of state resources.”
Apartheid state
The United Nations’ Economic and Social Commission for Western Asia (ESCWA), which is seized of the goings on within the occupied territory of Palestine and about the fate of the Palestinian citizens within Israel, had brought out an excellent report in 2017 titled “Israeli Practices towards the Palestinian People and the Question of Apartheid”. The report was compiled by Richard Falk (Professor Emeritus of International Law at Princeton University and former UN Special Rapporteur for Human Rights in Palestine) and by Virginia Tilley (Professor of Political Science at Southern Illinois University). However, immediately after the Report was uploaded on the ESCWA website on March 15, 2017, the United States and Israel voiced their vehement opposition to it. Succumbing to pressure, the UN Secretary-General, Antonio Guterres, on March 17, 2017, ordered the withdrawal of the Report, which effectively meant suppressing vital information pertaining to gross misconduct by Israel. If the veracity of the contents of the Report was in doubt, the best way to verify the truth was to question the authors regarding the facts or to appoint an independent commission to verify the veracity of the same. On the contrary, the enactment of the new apartheid law by Israel more than corroborates the findings of the said ESCWA Report. Therefore, it would be appropriate to bring to light some of the observations and conclusions of that Report, which are as follows:
- “To assert that the policies and practices of a sovereign State amount to apartheid constitutes a grave charge. A study aimed at making such a determination should be undertaken and submitted for consideration only when supporting evidence clearly exceeds reasonable doubt. The authors of this report believe that evidence for suspecting that a system of apartheid has been imposed on the Palestinian people meets such a demanding criterion. Given the protracted suffering of the Palestinian people, it would be irresponsible not to present the evidence and legal arguments regarding whether Israel has established an apartheid regime that oppresses the Palestinian people as a whole, and not to make recommendations for appropriate further action by international and civil society actors.” (p.vi)
- “This report concludes that Israel has established an apartheid regime that dominates the Palestinian people as a whole. Aware of the seriousness of this allegation, the authors of the report conclude that available evidence establishes beyond a reasonable doubt that Israel is guilty of policies and practices that constitute the crime of apartheid as legally defined in instruments of international law.” (p.1)
- “The report relies for its definition of apartheid primarily on article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973, hereinafter the Apartheid Convention) [which is as follows]:
The term “the crime of apartheid”, which shall include similar policies and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to… inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them. (p.2)
- “This report establishes, on the basis of scholarly inquiry and overwhelming evidence, that Israel is guilty of the crime of apartheid…. any delay [in investigating the legal facts of culpability] compounds the crime by prolonging the subjugation of Palestinians to the active practice of apartheid by Israel. Prompt action is accordingly imperative to avert further human suffering and end a crime against humanity that is being committed now.” (p.51)
- “While urging swift action to oppose and end this apartheid regime, the authors of this report urge as a matter of highest priority that authoritative bodies be requested to review its findings. Opinions of the General Assembly, ICJ and ICC are especially crucial, although assessments by national courts would also be relevant to interpreting international criminal law and appraising its implementation by Member States.” (pp.51-52)
It is, indeed, a matter of grave concern that the UN Secretary-General and the UN Secretariat have so far only attempted to suppress the said ECSWA Report instead of ensuring that the findings of the Report are reviewed by competent bodies and action taken accordingly. Especially in the light of the impact of the latest law enacted by the Israeli Knesset, it is incumbent on all conscientious human beings to collectively exert unrelenting pressure on all concerned decision makers to liberate the people of Palestine from the yoke of Israeli Apartheid.
Postscript: The rift within
One of the immediate negative fallout of the new law, even within the ruling circles in Israel, is the rift it has caused among the Druze, a small Arabic-speaking Islamic sect in Israel, the majority of whom have been ardently supporting the Zionist regime since 1956. The Druze, who form merely 1.7 % of the Israeli population but are well represented in the Israeli Defense Force and the Israeli Knesset (including one holding a ministerial berth), have suddenly realised that under the new law they have been made literally outcasts. According to a news report, Druze leaders have not only filed a petition in the highest court against the new law arguing that it discriminates against minorities but are also pressurizing Prime Minister Benjamin Netanyahu to make necessary changes in it to safeguard the interests of the Druze. The same report also refers to the expression of dissent by Israel’s Finance Minister Moshe Kahlon, who now feels that defining Israel as a Jewish state was a “mistake”, that it was passed too quickly and that it must be amended.
[…] article was originally published in The Leaflet of Lawyers […]
[…] article was originally published in The Leaflet of Lawyers […]
I really appreciated this article. Thankyou
Hi from Athens,Greece,EU.
The very useful article of N.D. Jayaprakash about Israel, has made a huge failure about the Druze.
I just copy the wikipedia section: https://en.wikipedia.org/wiki/Druze
It’s obvious that the the whole argument would have been more important if there was a proper knowledge of who they are the Druze.
Truly yours
Regarding the 750000 Palestinians who were expelled from Palestine after the 1948 Arab-Israel War the Zionists have always responded that a similar number of Arab Jews were likewise expelled from throughout the countries of the Middle East and nearly all settled in Israel.So it was quid pro quo.I have a feeling that the fate of Arab Jews is perpetually omitted in this discourse. Salim