The Basic Law: Israel as the Nation-State of the Jewish People has generated shock in Israel because of its dangerous political and legal ramifications, primarily regarding the status and rights of Palestinian Arab citizens of Israel. This essay examines the law and its consequences in various aspects of life.
As a Basic Law, the new legislation has constitutional standing. It aims to settle the debate regarding the ideology and values underpinning a future constitution for Israel. In particular, this law deepens discrimination between Jews and Palestinians citizens in Israel and threatens democratic rights and values within a constitutionally mandated framework. It is anticipated that this legislation will subjugate the will of the Palestinians — an indigenous minority in Israel — to the interests and narrative of the hegemonic Jewish majority. Discrimination in favor of Jews and against Palestinians in Israel has been consolidated through discriminatory legislation and official constitutional arrangements that are related to both the symbolic domain, such as the definition of the state and its symbols, but also the very core of Palestinians’ legal status, including self-determination, immigration, citizenship, land, language and religion. This law and the articles therein define the state as being exclusively “the national home of the Jewish people.” Therefore, this basic law is a clear-cut case of legislation biased in favor of the interests of the majority. Accordingly, the law aims to formalize discrimination constitutionally — a situation which will result in real and serious infringements of the rights of Palestinian citizens.
Discriminatory Articles in the Law
Article 1.A. of the law identifies the “land of Israel” as “the historical homeland of the Jewish people.” Article 1.B. says that “the state of Israel is the national home of the Jewish people” and Article 1.C. adds that “the right to exercise national self-determination in the state of Israel is unique to the Jewish people.”
Israel was previously defined as “Jewish and democratic” state. This definition had been reaffirmed in the preambles of substantial legislation over the years. The new law changes the definition of Israel and, with the absence of any reference to democracy, gives priority to the “Jewish” elements over the “democratic” ones. Furthermore, there is a flagrant contradiction between the notion of democracy and the assertion that the right to national self-determination in the state of Israel is exclusive to the Jews. This is particularly the case when a substantial minority, one-fifth of the population, belongs to a different national group (ethnicity) and constitutes an indigenous minority (as opposed to an immigrant group). The new constitutional preference for Jews constitutes a grave violation of national and civil belonging of Palestinian citizens as it transforms them into citizens of a state who, constitutionally, declares that the country is not their national home — in other words, strangers in their homeland.
The law’s explicit bias toward the Jewish majority represents a principled and serious hurdle to the achievement of full equality for the Arab Palestinian minority, a group that has historically endured injustice and discrimination. Not only is the definition exclusionary, this norm will also impact many areas of life between Jews and Arabs. Indeed, this discriminatory definition perpetuates the lower normative status of Palestinian citizens, with all the dangerous socio-political implications that this entails.
The legislative definition of the state as a Jewish state or as a state belonging to the Jewish people establishes a hierarchy of citizenship in which the Jews are seen as living in their national home while non-Jews live in a state that is not their home. This excludes Palestinian citizens from the social contract, downgrades their legal status, and delegitimizes their place in the state while denying them an equal share of national resources.
The Right to Self-Determination: For Jews Only
The law does not recognize the right of any non-Jewish group to self-determination. Nor does it acknowledge the fact that the country is the homeland of another people. Furthermore, it grants constitutional status to the term “the land of Israel” (instead of “country” or “state”). As such, it affirms the Zionist narrative regarding the relationship of the Jewish people to historical Palestine, which is seen as the historical home of the Jewish people.
Clearly, the Israeli right wing has sought to settle the issue of the precedence of the Jewish state over its democratic elements through the Nation-State Law. The first issue is its relationship to the Palestinian people. Indeed, the law represents an attempt to completely do away with the notion of the establishment of a Palestinian state coexisting side by side with Israel. The opening article’s reference to “the land of Israel” implies that the borders of the state of Israel are not limited to the 1948 borders; rather they extend beyond these boundaries to encompass Greater Israel. Furthermore, the claim that the right to self-determination is a right exclusively for the Jewish people essentially denies Palestinians this same right. Consequently, this article in the Nation-State Law is an attempt to settle the conflict by using the terminology and discourse of the 1917 Balfour Declaration, which sought to establish a national home for the Jewish people and granted non- Jews with civil and religious rights only.
The law’s position on Jerusalem is similar. It contains the statement that Jerusalem, “complete and united,” is the capital of Israel. Therefore, the law clearly violates the rights of the Palestinians and indicates an intention by the Israeli government to reject any settlement that would be based on the 1967 borders. This not only violates the rights of the Palestinian people but also runs counter to international consensus on the solution to the conflict, which recognizes the right of the Palestinian people to establish its state with (East) Jerusalem as its capital.
State Symbols: Exclusive for Jews
The law aims to consolidate existing state symbols and give them constitutional backing; accordingly, the state and its symbols are associated exclusively with Jewish heritage. Article 2, entitled “The Symbols of the State,” establishes that Hatikvah is Israel’s national anthem, that the flag bears the Star of David in its center, and that the state emblem is a sevenbranched Menorah (candelabra) with olive leaves on both sides and the word “Israel” at its base.
All of these symbols represent the Jewish nationality and religion. By giving them constitutional status, the law deepens existing discrimination against its Palestinian citizens.
Immigration and Citizenship
Articles 5 and 6 of the law provide a constitutional basis for the concept of immigration to Israel and the right to receive citizenship, an arrangement which exclusively applies to Jews. The law specifies that the state will endeavor to promote “the ingathering of the exiles,” referring to Jewish communities abroad, and consolidate links between Israel and Jewish communities in the Diaspora. It further specifies that the state shall assist members of the Jewish people in distress or in captivity based on their being Jews or on their citizenship.
The law gives constitutional status to existing official discrimination in Israeli legislation on immigration and access to citizenship, as expressed in the Law of Return and the Citizenship and Entry Into Israel Law. These laws provide Jews and their families with the option of acquiring Israeli citizenship immediately upon their arrival into the country based on the principle of “return.” This principle is applicable to Jews and their relatives only, even if those family members are non-Jews.
The law also provides that “the state shall act to preserve the cultural, historical and religious heritage of the Jewish people,” granting exclusive priority to cultural and historical traditions and legacy of the Jewish people. Thus, it confers upon the state a constitutional obligation to safeguard this privilege.
The Hebrew Calendar: The Official Calendar of the State
The law deems the Hebrew calendar to be the official calendar of the state, thereby granting constitutional status to the culture of the majority. While the law also recognizes the Gregorian calendar, it makes no mention of the Hegira calendar observed by the Muslim community. In this way, it further ostracizes the Arab minority.
Saturday and Jewish Festivals: State Holidays
In regulating holidays in Israel, the law considers Independence Day the “official national holiday of the state” and establishes Memorial Day for the Fallen in Israel’s Wars and Holocaust and Heroism Remembrance Day as official memorial days. It also determines that the Jewish Sabbath and Jewish festivals are the “established days of rest in the state.” While it says that non-Jews “have a right” to observe their Sabbaths and festivals as days of rest, the gap between the official status accorded to Jewish holy days and the conditional status accorded to others leaves Arab citizens subject to the whims of their employers with regard to absence from work on days of rest.
Hebrew: The Official Language of the State
Article 4 establishes Hebrew as the official language of the state while granting Arabic a “special status” whose usage in or by state institutions “will be set in law.” Since the establishment of the state, Arabic has been an official language, de jure if not de facto, making it legally equal to Hebrew. The Nation-State Law strips Arabic of this official status and replaces it with an undefined “special” status.
Arabic is a key component of the Palestinian Arab minority’s culture, heritage and identity and is used daily. Denial of this right in a constitutional framework undermines Arab Palestinians’ collective rights and represents a dangerous precedent which may have serious future implications: In undermining the status of Arabic, it also undermines the status of Arabs as a distinct national group.
It is important to note that language is not only a tool for communication but constitutes a core component of collective identity. The law’s elevation of Hebrew and downgrading of Arabic aims to place the former in a hegemonic position while impeding the potential to improve the status of Arabic in the future.
Promoting Jewish Settlement Activity
Article 7 of the law stipulates that “the state views the development of Jewish settlement as a national value and will act to promote its establishment and consolidation.” The law facilitates establishment of residential communities based on national or religious identity, and thus enables these communities to remain exclusively Jewish. Using the same logic as apartheid, the law legitimizes racial segregation and discrimination in building and planning. The law further consolidates and legitimizes Israel’s apartheid policies in zoning and planning, a matter which will deepen discrimination and exclusion between Jewish and Arab citizens in all areas of life that relate to land and residence.
Based on this short review, it is clear that Nation-State Law gives preference to Jewish citizens over Palestinian citizens. It establishes that “the State of Israel is the national home of the Jewish people” and, accordingly, grants only to Jews the right to self-determination.
The law seriously compromises the rights of the Palestinian people on both sides of the Green Line. It negates the right of the Palestinian people to self-determination and to Jerusalem, as explicitly stated in its articles and as further indicated in the stated positions of the right-wing Netanyahu government.
The official definition of the character of the state as Jewish or as the national home of the Jewish people in a constitutional framework reaffirms the inferior legal status of Palestinian citizens, establishing formal subordination that undermines their status and delegitimizes their individual and collective national rights. In addition, this constitutional definition deeply and negatively impacts the sense of belonging among Palestinian citizens. They become citizens of a state that declares, on the most basic level, that this is not their national home and, as such, makes them strangers in their own homeland.
As the law gives priority to the Jewish character of the state, it violates basic rights granted to any citizen in a democratic system, including the right to equality and equal citizenship. Endangering and downgrading the principle of equality breaches a key pillar of all democracies. On the ground, the law subjugates internationally recognized basic democratic principles to the Jewish character of the state.
The law divides Israeli citizenship into two types: first-class citizens who are considered to be the exclusive owners of the state and secondclass citizens who are excluded from the definition of the character of the state. This classification creates a hierarchy of citizenship whereby Arab Palestinian citizens are inferior. Thus, the law constitutionally confirms and legalizes this classification of citizenship, a classification that existed in pre-existing legislation and that mandates some of the same principles as this law. It is expressed largely by defining Israel as a Jewish state with legal measures that grant central privileges and special arrangements to Jews only.
The law is a flagrant violation of basic human rights, as it legalizes discriminatory policies against the Arab Palestinian citizens of Israel. While Jews are granted collective rights, these same rights and arrangements are not given to the Arab national minority in Israel. This stands in contradiction to the evolving trend in international law which recognizes the rights of national minorities in general and the rights of native minorities in particular.
For further reading:
- Yousef Jabareen (20.7.2018). Israel just dropped the pretense of equality for Palestinian citizens (Los Angeles Times): https://www.google.co.il/amp/www. latimes.com/opinion/op-ed/la-oe-jabareen-israel-nation-state-bill-20180720-story. html%3foutputType=amp
- Yousef Jabareen (2018). Enshrining Exclusion: The Nation-State Law and the Arab- Palestinian Minority in Israel, in: Defining Israel: The Jewish State, Democracy, and the Law, Simon Rabinovitch ed. 249-63 (Cincinnati, OH: Hebrew Union College Press, 2018).