What’s Wrong with Re-Affirming Israel’s Jewish and Democratic Character?
By David Daoud
Far from being the death-knell of Israeli democracy, the proposed “Jewish State” legislation—which was first promoted by the Center-Left Kadima party in 2011—should be seen as a fulfillment of Israel’s democratic tradition, and a continuation of the international events that give the country legitimacy—even if it never passes.
Accordingly, "we … hereby declare the establishment of a Jewish state in eretz yisrael, to be known as the State of Israel.” Anyone following the news lately would probably assume that this is a quote from the Jewish State Bill, proposed by Prime Minister Benjamin Netanyahu.
In fact, it’s an excerpt from Israel’s Declaration of Independence, written by David Ben-Gurion, Israel’s first Prime Minister and head of the Left-wing Mapai party, and declared by him on the eve of Israel’s independence, on May 14, 1948.
Yet, even though its content is not appreciably different from Ben-Gurion’s declaration, analysts and politicians have been in an uproar over the Jewish State Bill, attacking it as a radical threat to Israeli democracy.
In fact, the actual language of the various recently proposed bills is remarkably innocuous. The legislation seeks to officially reaffirm the character of the State of Israel—“a Jewish and democratic state in the spirit of the principles of the Declaration of Independence”—as the national state of the Jewish people.
This may seem redundant, but due to the intricacies of Israeli law, it is not. An affirmation both of democracy and reality, such legislation is important as a complement to Israel’s Basic Law: Human Dignity and Liberty, which defines Israel’s democratic character, so that neither characteristic prevails over the other.
“Both of these values are equal and both must be considered to the same degree,” says Netanyahu.
In other words, at a time when Israel’s right to exist as a Jewish state is under unprecedented attack, all the “Basic Law: Israel as Nation State of the Jewish People” does is summarize and enshrine these realities in a single basic law.
In order to achieve this, the bill brings together all the various legal aspects of Israel’s unique Jewish existence. It describes the Land of Israel as the Jewish people’s “historic homeland” and “national home” where they realize their “right to self-determination in accordance with its culture and historic heritage,” making the right to self-determination in the State of Israel “unique to the Jewish people.”
Just as instruments of international law (particularly Articles 6 and 7 of the Palestine Mandate), the Declaration of Independence, and the 1950 Law of Return (also signed into law by Prime Minister David Ben-Gurion) grant Jews special immigration rights to the State of Israel, so too does the Bill declare that “all Jews are eligible to immigrate to the country and receive citizenship of the state according to law,” and that the State would act to gather the exiles of the Jewish people.
The bill binds Israel to act in assistance of Jews being persecuted because of their identity. It makes the State’s mission the preservation and cultivation of “the historical and cultural heritage of the Jewish People,” obligating all educational institutions to “teach the history, heritage and tradition of the Jewish people.”
It makes Jewish law a source of inspiration for Knesset legislation, and allows courts, in the absence of “legislation, precedent or clear inference,” to draw on the “principles of freedom, justice, fairness and peace of the heritage of Israel.”
Like other democratic constitutions, it defines the country’s national anthem (“Hatikva”), flag, and coat of arms. It makes the Hebrew calendar the official state calendar, and defines Yom Ha’Atzmaut (Independence Day), Yom Ha’Zikaron (Memorial Day for Fallen Soldiers), and Yom Ha’Shoah (Holocaust Memorial Day) as official state holidays, marking Jewish holidays and the Sabbath as be public holidays, but “the country’s public holidays.”
The bill also defines Israel as a democratic state, bound to uphold the fundamental freedoms and individual rights of its citizens according to law. As a democratic state, Israel will also “act to enable all residents of Israel, regardless of race or nationality, to preserve their culture, heritage, language, and identity.”
The bill also protects all holy places against desecration or any damage that might negatively affect worshippers’ access to these sites or their feelings, and grants “members of recognized faiths [the right] to rest on their Sabbaths and holidays,” paralleling Article 23 of the Palestine Mandate.
Finally, like the other Basic Laws, it disallows any infringement on individual rights, except by a law that “befits the values of the State of Israel…designed for a worthy purpose” and which is not excessive.
As a point of comparison, in U.S. Constitutional law, such a law would have to be “narrowly tailored,” use the least restrictive means and be justified by a “compelling governmental interest.” It would have to pass the most stringent standard of judicial review used by U.S. courts, known as “strict scrutiny.”
All of this is in keeping with both Israeli and international law, as well as the basic political norms most Western countries apply to themselves.
Nonetheless, the non-controversial concepts enshrined in this bill have come under scathing and overwrought attack, based on straw-men arguments unconnected to the bill’s actual language, or based on now-rejected draft proposals.
Israeli-Arab writer Sayed Kashua, for example, claims the bill is “intended to ensure that when the Jewishness of the state clashes with equality, the Jewish nature of Israel will prevail rather than democracy.” The purpose, he says, is to make Israel “exclusively for Jews and only for Jews,” a place where “people are separated by race.”
Left-leaning scholar Bernard Avishai has said that the bill is “not really about conserving collective cultural rights, but rather about confirming individual legal privileges.”
He claims it is Netanyahu’s attempt to damage individual and minority rights and curtail Israel’s judiciary. He concludes that the bill forces Israel to choose whether it wishes to be a “globalist Hebrew republic or a little Jewish Pakistan.”
Many respected media outlets have also attacked the bill in vitriolic terms.
The Sunday Times’s headline on the subject was “Israel Set to Make Arabs ‘Second-Class Citizens.’”
An emotional Wall Street Journal op-ed claimed the bill demeans the standing of Israelis like the heroic Druze police officer Zidan Saif and “betrays the most fundamental principles in the Israeli Declaration of Independence.”
The New York Times titled its editorial on the bill “Israel Narrows Its Democracy,” calling it a Right-wing initiative contrary to “Israel’s very existence and promise [that] has been based on the ideal of democracy for all its people,” even implicitly tying it to segregation in the pre-Civil Rights American South.
Western diplomats have also voiced their concern. Senior European Union officials said they have taken note of it, and expect Israel to “recognize and respect” its longstanding democratic principles.
U.S. State Department spokesman Jeff Rathke said that the United States “would expect any final legislation to continue Israel’s commitment to democratic principles. … The United States’ position … is that Israel is a Jewish and democratic state in which all citizens should enjoy equal rights.”
German Foreign Ministry Spokesman Martin Schaefer noted his country’s “wish and expectation … that the rights of ethnic, religious and all other minorities in the Middle East … are taken into consideration and their rights are ensured. That is one of the biggest problems in the region that is not really achieved in many states, including Iraq. But that is also the case in other states, here I am explicitly referring to Israel.”
Many Western embassies in Israel received repeated inquiries from their home countries in regard to the bill, asking why it was needed and what the implications for the Israel-Palestinian peace process might be.
The Dutch ambassador to Israel, Caspar Veldkamp, said the West was closely following the debate on the bill and expected “Israel to continue to live up to its democratic ideas and practices.”
The Jewish State Law is acceptable under both Israeli and international law, as well as under the basic political norms most Western countries apply to themselves.
This widespread concern, misrepresentation of the idea, and manufactured outrage, is all the more ridiculous when one recognizes that the bill’s conception is not an idea of the Right, or the Likud, or the current government of Prime Minister Benjamin Netanyahu. In fact, the bill itself originated with MK Avi Dichter of the Center-Left Kadima party back in 2011. But the bill’s vision of Israel as a Jewish state is much older, rooted in the instruments of international law which gave rise to the State of Israel itself.
The Jewish state’s rebirth was the result of the Jewish people’s physical and legal assertion of their national right to self-determination in their ancient homeland, and the international community’s de jure recognition of that right. Being a Jewish State was, and remains, the reason for Israel’s existence under international law.
The first official recognition of the Jewish people’s right to a state in the Land of Israel long predates Israel’s establishment. It was given by Great Britain on November 2, 1917, in the form of the Balfour Declaration. Though not a binding instrument of international law per se, the Declaration was important because it was the first time a modern great power recognized the Jewish people’s continuing historical connection to the land and their right to reconstitute themselves as a nation in that territory, then under Ottoman control.
It conveyed Britain’s favorable view toward “the establishment in Palestine of a national home for the Jewish people,” and pledged to facilitate that establishment. While the Declaration pointed out the necessity of protecting “the civil and religious rights of existing non-Jewish communities in Palestine,” historian Anita Shapira noted that this refers “not to national rights, but only civil and religious ones.”
Leopold Amery, a Secretary to the British War Cabinet of 1917-18, testified under oath to the Anglo-American Committee of Inquiry in January 1946 that the phrase “national home for the Jewish people” “was intended and understood by all concerned to mean at the time of the Balfour Declaration that Palestine would ultimately become a ‘Jewish Commonwealth’ or a ‘Jewish State,’
if only Jews came and settled there in sufficient numbers.” In his Memoirs of the Peace Conference, British Prime Minister David Lloyd George confirmed Amery’s understanding, noting that the Declaration was intended to make Palestine a “Jewish Commonwealth” when the Jews became a majority of the country’s population, criticizing as “unjust” and “a fraud” the subsequent artificial restriction of Jewish immigration by British authorities intended to keep them a minority in Palestine.
Britain was not alone in supporting this endeavor. The Declaration’s promise of a Jewish State was “issued with the approval of the United States and France, and after consultation with Italy and the Vatican, and greeted with the approval by the public and press throughout the western world,” notes historian David Fromkin.
Lloyd George’s Memoirs notes President Woodrow Wilson explaining the Declaration to the American public, noting that, “the Allied nations, with the fullest concurrence of our Government and our people, are agreed that in Palestine shall be laid the foundations of a Jewish Commonwealth.”
April 24, 1920, at the San Remo Conference, the Supreme Council of the Principal Allied Powers gave the provisions of the Balfour Declaration the status of international law, and recognized the Jewish people’s right to establish a nation-state in Palestine.
The San Remo Resolution made the establishment of a Jewish state an international legal obligation. It devolved this obligation onto the designated ruler of “Mandatory Palestine.” The Council did not intend to satisfy Arab national claims or rights to self-determination in Palestine, as it had already created and designated Syria and Mesopotamia for that purpose.
The San Remo Resolution also provided that the creation of a Jewish State “would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine,” which did not include national rights or self-determination. Those rights were suppressed under Ottoman imperial rule.
The Resolution explicitly states that Palestine would be entrusted to a Mandatory power to put into effect the Balfour Declaration’s demand for “the establishment in Palestine of a national home for the Jewish people,” without prejudicing “the civil and religious rights [emphasis own] of existing non-Jewish communities…”
Understanding the phrase “civil and religious rights,” is essential to understanding the rights of Palestine’s non-Jewish communities as envisioned under international law. The minutes of the San Remo Conference meeting on the evening of April 24, 1920 explain the phrase’s meaning.
A disagreement, over form rather than substance, arose between French Prime Minister Alexandre Millerand and British Foreign Affairs Secretary Lord George Nathaniel Curzon over the phrase.
Millerand complained that “civil and religious rights,” was insufficient, and proposed adding the explicit mention of the additional “political rights” of the non-Jewish communities, by which he meant the right to vote and take part in elections. Lord Curzon rejected the change as unnecessary, since in British law such rights were included under “civil rights.” In drafting the San Remo Resolution, the rights guaranteed to Palestine’s non-Jewish minorities were individual civil and religious rights.
The international community did not envision collective political rights – i.e. the right to self-determination – being granted to Palestine’s non-Jewish communities.
The Council of the League of Nations subsequently appointed Great Britain the ruler of Mandatory Palestine, beginning on September 29, 1923. Fromkin notes that the Balfour Declaration’s call for a Jewish state in Palestine “was embodied in the League of Nations Mandate entrusting Britain as trustee of Palestine with the mission of creating a Jewish National Home while protecting the rights of non-Jews as well….” Fromkin’s understanding is confirmed by the Mandate’s preamble, which explicitly states that Britain was given Mandatory powers in order to enact the Balfour Declaration, based on the “recognition … given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.”
No such promise was made to the Palestinian Arabs. Per Article 80 of the United Nations Charter, the Palestine Mandate has continuing validity under international law, and Israel’s Supreme Court considers the Mandate, in its entirety, as binding law upon itself.
The international community has long recognized the Jewish people’s right to self-determination.
Article 2 of the Palestine Mandate incorporated the Balfour Declaration’s promises and meaning, charging Britain with the responsibility for “placing the country under such political, administrative and economic conditions as will secure the establishment of a Jewish national home…and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.”
Article 6 required Britain to “facilitate Jewish immigration,” to Palestine and “encourage…close settlement by Jews on the land,” and Article 7 stipulated the creation of a nationality law for Palestine which would include “provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews.”
For various reason, the British repeatedly attempted to revise the terms of the Mandate’s territorial scope. However, even these subsequent attempts at revising the Mandate still adhered to the principle of establishing a Jewish state in Palestine. The 1936 Peel Commission Report, one of the first attempts at revising the Mandate, recommended the partition of Palestine into separate Jewish and Arab states.
The report noted that partition would grant Palestine’s Arabs “national independence” in their own state; but at the same time, it acknowledged that “partition secures the establishment of the Jewish national home and relieves it from the possibility of being subjected in the future to Arab rule.” This, the Commission stated,
Enables the Jews in the fullest sense to call their National Home their own: for it converts it into a Jewish State. Its citizens will be able to admit as many Jews into it as they themselves believe can be absorbed. They will attain the primary objective of Zionism—a Jewish nation, planted in Palestine, giving its nationals the same status in the world as other nations give theirs. They will cease at last to live a “minority life.”
The next recommendation for partition came from the United Nations Special Committee on Palestine (UNSCOP) report, submitted to the UN General Assembly on September 3, 1947. It also recommended “the creation of a Jewish state under a partition scheme” in Palestine, ruling out the possibility of a binational state.
Following UNSCOP’s recommendations, the UN General Assembly passed Resolution 181 on November 27, 1947, which formally partitioned the territory. It stated that, after the termination of the British Mandate, an “independent Arab and Jewish State … shall come into existence in Palestine.”
While it called for the protection of the human rights of minorities in both states, it did not mention national rights or rights of self-determination for these groups. The national rights of the Palestinian Jews would be realized only in the Jewish state, and vice-versa.
The section entitled “Religious and Minority Rights” guarantees freedom of conscience and worship, prohibits discrimination based on race, religion, language or sex, and enjoins equal protection of the laws and protection of the personal status of minorities and adequate provisions for minority education for each community, “in its own language and cultural traditions…while conforming to such educational requirements of a general nature as the State may impose.” But it does not mention national rights or rights of self-determination for minority groups.
Finally, the Resolution’s citizenship law, intended to maintain Jewish and Arab majorities in their respective States after Partition, stated that in the transitional period until each State’s independence, “No Arab residing in the area of the proposed Arab State shall have the right to opt for citizenship in the proposed Jewish State,” and vice versa. The Arab and Jewish States were not required to uphold the national rights or right to self-determination of their respective minorities.
Thus, over the decades leading up to the independence of the State of Israel, international law encouraged and legally required the establishment of a Jewish state. Its proviso that a Jewish state should ensure and protect the civil, political, and legal rights of its non-Jewish minorities did not negate this.
In fact, it strengthened it—as it would in the modern version of the conception currently under consideration—since it implicitly stated that international law did not see any inherent contradiction between such a state’s Jewish and democratic character.
Neither did Israel’s Declaration of Independence contain any such contradiction. It declares Israel a Jewish state that 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, 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.”
It also called on Israel’s Arab citizens to “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.”
At the same time, the Declaration asserts that the State of Israel is a Jewish state in no uncertain terms. Quite explicitly, the Declaration calls the Land of Israel “the birthplace of the Jewish people,” where their religious and political identity was shaped and where they first attained statehood. It further notes that Theodor Herzl’s efforts led to the resurrection of “the right of the Jewish people to national rebirth (tekuma leumit) in its own country.”
Israel’s raison d’être was to be a Jewish state in the Jews’ “national homeland” that “would open the gates of the homeland wide to every Jew and confer upon the Jewish people the status of a fully privileged member of the community of nations.”
The internationally recognized right of the Jewish people to “establish their state”—in other words, their right to self-determination—“is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign state.” It was on this basis that President Harry Truman granted de jure American recognition to the newborn State of Israel.
While the Declaration is neither law nor an ordinary legal document, it has legal standing in Israeli law. The third section, describing the democratic principles that guide the State of Israel, has been used by the Supreme Court for the purpose of normative interpretation.
The second section, which declares the establishment of Israel as a Jewish state, is the primary source of authority in the Israeli legal system. Given that the Jewish State Bill endorses and echoes both of these sections, it cannot be called a radical revision of Israel’s Jewish or democratic character.