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

Recognizing a Palestinian State Won’t Help Palestinians, or Even Make Palestinian Statehood More Likely

While Shira Efron and Michael Koplow are more sanguine about the possibility of a two-state solution to the Israel-Palestinian conflict, and more critical of Israel’s policies in the West Bank, than I am, I found much worth considering in their recent article on the condition of the Palestinian Authority (PA). Particularly perceptive are their comments on the drive to grant diplomatic recognition to a fictive Palestinian state, a step taken by nine countries in the past few months, and almost as many in total as recognize Israel.

Efron and Koplow argue that this move isn’t a mere empty gesture, but one that would actually make things worse, while providing “no tangible benefits for Palestinians.”

In areas under its direct control—Areas A and B of the West Bank, comprising 40 percent of the territory—the PA struggles severely to provide services, livelihoods, and dignity to inhabitants. This is only partly due to its budgetary woes; it has also never established a properly functioning West Bank economy. President Mahmoud Abbas, who will turn ninety next year, administers the PA almost exclusively by executive decrees, with little transparency or oversight. Security is a particular problem, as militants from different factions now openly defy the underfunded and undermotivated PA security forces in cities such as Jenin, Nablus, and Tulkarm.

Turning the Palestinian Authority (PA) from a transitional authority into a permanent state with the stroke of a pen will not make [its] litany of problems go away. The risk that the state of Palestine would become a failed state is very real given the PA’s dysfunctional, insolvent status and its dearth of public legitimacy. Further declines in its ability to provide social services and maintain law and order could yield a situation in which warlords and gangs become de-facto rulers in some areas of the West Bank.

Otherwise, any steps toward realizing two states will be fanciful, built atop a crumbling foundation—and likely to help turn the West Bank into a third front in the current war.

Read more at Foreign Affairs

More about: Palestinian Authority, Palestinian statehood