Why Israel Needs a Nation-State Law

To much fanfare and controversy, the Knesset last week passed a basic law—a law with de-facto constitutional status—declaring Israel “the nation-state of the Jewish people.” The new law’s clauses grant official status to the Hebrew language (while granting unique “special status” to Arabic), the national anthem, and the Israeli flag; others proclaim that the state “will act to encourage and promote” Jewish settlement and “will be open for Jewish immigration.” While some of the law’s critics have claimed, wrongly, that it relegates non-Jews to second-class citizenship and spells the end of liberal democracy in the country, others have contended that it is a wholly unnecessary restatement of what is already in Israel’s Declaration of Independence. Emmanuel Navon argues that it is anything but unnecessary:

In 1992, the Knesset passed two basic laws: one on “human dignity and freedom” and one on “freedom of occupation.” Justice Aharon Barak (who presided over the supreme court between 1995 and 2006) proclaimed a “constitutional revolution” after the passing of those two basic laws. What Barak meant was that the High Court of Justice could now strike down laws passed by the Knesset if deemed “unconstitutional” (i.e., incompatible with the two new basic laws). Nowhere in the basic laws does it say that the court is entitled to use them to strike down regular legislation. Yet Barak unilaterally granted that power to the court in a 1995 ruling.

The “constitutional revolution” has affected Israel’s identity as a nation-state. The basic law on “human dignity and freedom” states that Israel is a “Jewish and democratic state.” But what happens when Jewish and democratic values conflict? No problem, Barak wrote in 1992: in case of a conflict, the word “Jewish” shall be interpreted by the court “with the highest level of abstraction.” In other words, it shall be ignored. Theoretically, the court could use in its rulings Israel’s Declaration of Independence, which defines Israel as a Jewish state. Yet the court itself ruled in 1948 that the Declaration of Independence has no constitutional value.

The court’s activism, combined with the “highest level of abstraction” with which Barak interpreted Israel’s Jewishness, was soon to be felt. The court ruled that a Jew cannot purchase a plot of land in a Bedouin village (Avitan case, 1989), but that an Arab can build a house in a village established by the Jewish Agency (Ka’adan case, 2000). The court was petitioned twice by NGOs (in 2006 and in 2012) to cancel Israel’s citizenship law so as to impose on Israel the Palestinian “right of return” through the back door via fictitious marriages. Though the court rejected both petitions, it did so with a razor-thin majority of six to five.

Other laws and symbols related to Israel’s Jewish identity have not been immune from petitions to the High Court of Justice. The “law of return” (which grants automatic immigration rights to Jews) might one day be struck down for being discriminatory; Israel’s national anthem (which expresses the Jews’ two-millennia faithfulness to their land), and flag (which has a Jewish symbol) could be challenged in court for ignoring the feelings of the Arab minority; and taxpayers could petition the court against the spending of their money on the preservation of Jewish identity in the diaspora. Until the passing of the basic law on Israel as a nation-state, the court had no constitutional basis to reject such petitions and to protect Israel’s Jewishness. Now it does.

Read more at Jerusalem Post

More about: Aharon Barak, Israel & Zionism, Israel's Basic Law, Israeli Declaration of Independence, Supreme Court of Israel

An Israeli Buffer Zone in the Gaza Strip Doesn’t Violate International Law

 The IDF announced on Thursday that it is safe for residents to return to some of the towns and villages near the Gaza Strip that have been abandoned since October 7. Yet on the same day, rocket sirens sounded in one of those communities, Kibbutz Mefalsim. To help ensure security in the area, Israel is considering the creation of a buffer zone within the Strip that would be closed to Palestinian civilians and buildings. The U.S. has indicated, however, that it would not look favorably on such a step.

Avraham Shalev explains why it’s necessary:

The creation of a security buffer along the Gaza-Israel border serves the purpose of destroying Hamas’s infrastructure and eliminating the threat to Israel. . . . Some Palestinian structures are practically on the border, and only several hundred yards away from Israeli communities such as Kfar Aza, Kerem Shalom, and Sderot. The Palestinian terrorists that carried out the murderous October 7 attacks crossed into Israel from many of these border-adjacent areas. Hamas officials have already vowed that “we will do this again and again. The al-Aqsa Flood [the October 7th massacre] is just the first time, and there will be a second, a third, a fourth.”

In 2018 and 2019, Hamas and Palestinian Islamic Jihad organized mass marches towards the Israeli border with the goal of breaking into Israel. Billed by Palestinians as “the Great March of Return,” its name reveals its purpose—invasion. Although the marches were supposedly non-violent, they featured largescale attacks on Israeli forces as well as arson and damage to Israeli agriculture and civilian communities. Moreover, the October 7 massacre was made possible by Hamas’s prepositioning military hardware along the border under false cover of civilian activity. The security perimeter is intended to prevent a reprise of these events.

Shalev goes on to dismantle the arguments put forth about why international law prohibits Israel from creating the buffer zone. He notes:

By way of comparison, following the defeat of Nazi Germany, France occupied the Saar [River Valley] directly until 1947 and then indirectly until reintegration with Germany in 1957, and the Allied occupation of Berlin continued until the reunification of Germany in 1990. The Allies maintained their occupation long after the fall of the Nazi regime, due to the threat of Soviet invasion and conquest of West Berlin, and by extension Western Europe.

Read more at Kohelet

More about: Gaza Strip, Gaza War 2023, International Law, Israeli Security