Separate and Unequal in Israel: The Foundations of Discriminatory Law

On July 19, the Israeli parliament, the Knesset, passed what it called the “Basic Law: Israel as the Nation-State of the Jewish People.” This new law enshrines discrimination, with constitutional weight, into the Israeli state’s legal system, spelling further marginalization and mistreatment of Israel’s non-Jewish population, primarily Palestinian citizens of Israel who make up 20 percent of the population.

The notions that the United States and Israel have “shared values” and that Israel is the “only democracy in the Middle East” have given many Americans the false impression that the United States and Israel are set up in similar ways legally.

To fully understand the meaning and gravity of this development, it is crucial to review the history and context of lawmaking in Israel around the concept of citizenship, particularly as it relates to Palestinian citizens and the state’s privileging of Jews over non-Jews. Largely due to misleading epithets that pollute the discourse on Israel in the United States, including the notions that the United States and Israel have “shared values” and that Israel is the “only democracy in the Middle East,” many Americans are under the false impression that the United States and Israel are set up in similar ways legally.

In reality, and unlike the United States where the US Constitution is the supreme law of the land, Israel is among very few states in the world without a codified constitution. Instead, Israel has a series of “basic laws” that have constitutional weight, but they are written and augmented in a piecemeal fashion with the idea that, at some undefined point in the future, they will together add up to a constitution.

But that was not always the idea. In fact, Israel’s Proclamation of Independence of May 14, 1948 declared the state would adopt a constitution by October of that year. The declaration was aimed in large part at garnering the acceptance of the international community for the state of Israel. It affirmed that Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex” and that it “will be faithful to the principles of the Charter of the United Nations.” The United Nations is mentioned in the declaration seven times, which ironically, given Israel’s disdain for the United Nations today, was a reflection of its desire to be accepted by the organization.

To gain acceptance by the international community in 1948, Israel understood it had to quell the concern that the Jewish state would act unfairly toward non-Jewish inhabitants and refugees.

At the outset, Israel’s acceptance by the international community was imperiled. By March of 1948, the 1947 partition plan lost the backing of the United States. There was international concern about what would happen should the Zionists attempt to impose a Jewish state by force on the majority native non-Jewish population of Palestinian Arabs, and afterward, whether it would repatriate the hundreds of thousands of Palestinian refugees expelled during the formation of the state. Thus, to gain acceptance by the international community, Israel understood it had to quell the concern that the Jewish state would act unfairly toward non-Jewish inhabitants and refugees.

One feature the United States and Israel do have in common, however, is that the flowery language of their declarations of independence did not translate into law. Indeed, the words “all men are created equal” with “inalienable rights” including “life, liberty and the pursuit of happiness” were penned into the US Declaration of Independence by a man, Thomas Jefferson, who later became president and legally owned slaves and continued to do so for years—as slavery would not be outlawed by the US Constitution for nearly another century. Likewise, the commitment to equality in Israel’s declaration never made it into Israeli law.

Nevertheless, defenders of Israel’s impossible attempt to be both a Jewish and a democratic state continue to point to the words in the 1948 proclamation as evidence that these incompatible concepts can somehow exist in harmony. What transpired in Israeli lawmaking after 1948 tells a very different story.

Early Reluctance on Citizenship

Almost immediately, the new state of Israel was recognized by both the United States and the Soviet Union, the preeminent postwar superpowers. Though its first application to join the United Nations was rejected, Israel’s second application in 1949 went through. Concern about placating the international community regarding equality and minority rights dissipated. David Ben-Gurion, Israel’s first and longest serving prime minister, vociferously opposed the idea of adopting a constitution; he saw many challenges to such an act, including having to confront the question of equality before the law and the oxymoron that is Jewish democracy. The backtrack on the commitment in the declaration became final when a compromise was reached to adopt basic laws, one at a time, to eventually become a constitution, thus putting off the difficult questions for a later time or another generation—or forever.

The founders of the Israeli state saw a challenge in decreeing citizenship: how to allow Jews from around the world to immigrate to Israel while preventing the exiled residents of Palestine from returning to their homes.

But Israel still faced challenges with the outside world because of its laws, or lack thereof. In fact, Israelis began to encounter difficulties in traveling or doing business internationally with documents that read “citizen of Palestine,” or other variations, since there was no citizenship in Israel in the early years. In fact, for the first four years of the state, from 1948 to 1952, there were no Israeli citizens because there was no citizenship law in Israel.

The founders of the Israeli state saw a challenge in decreeing citizenship. They wanted to privilege Jews from around the world to allow them to immigrate to Israel while, at the same time, denying return to exiled residents of Palestine who had been expelled and prevented from returning to their homes and lands by Zionist militias and the Israeli military. If the state made citizenship available to nonresidents from other parts of the world, then Palestinian Arab refugees could have a legal path to return, especially since they were residents in refuge. To get around this, Israel adopted three different laws. First, the so-called “Law of Return,” which passed in 1950, allowed nonresident Jews from anywhere in the world to immigrate to Israel. Then in 1952, a “Nationality Law” was passed that defined pathways to citizenship through immigration under the law of return or through current residency within the armistice lines of the state. These two laws allowed Jews inside and outside Israel to gain citizenship through the law of return, and they granted citizenship to non-Jewish residents as well. Through this construct, Israel extended citizenship to Jewish nonresidents while not extending it to Palestinian residents in refuge because they were not Jewish. Thus, the citizenship that was extended to Palestinians residing in Israel at the time became a category of exclusion and not one of inclusion, as citizenship is often understood in most liberal democracies. By 1954, Israel also passed a “Prevention of Infiltration Law,” which was aimed at Palestinian residents in refuge attempting to return to their homes, declaring anyone who was a resident in Palestine but had sought refuge elsewhere an “infiltrator.”

From these early stages of the state, Palestinian citizens of Israel were always treated as outsiders who would be, at best, tolerated by the Jewish state but who were never actually welcomed or considered part of the state’s identity—even though they were native inhabitants who predated the state itself. Through these laws, the Israeli state set up a discriminatory system that fundamentally treated citizens and nationals differently. Israel was, and remains, a state for certain nationals: the Jews. It privileged them and their status while merely tolerating non-Jewish citizens. In fact, “Israeli” is a citizenship but not a nationality; to this day, the Interior Ministry of Israel recognizes well over 100 nationalities, but “Israeli” is not one of them. By bifurcating the identity of nationals and citizens, the Israeli state has dual relations with two different classes of citizens, privileging one over the other. The result is two distinct social contracts: one is obtained through the inclusion of Jews, and the other obtained through the coercion of Palestinians—even while claiming that citizens have the same standing.

In 1992, the “Basic Law on Human Dignity” was passed. While this law mentioned certain rights, particularly civil liberties, the right to equality was not among them; the law was largely aimed at enshrining the values of a “Jewish and democratic” state. This provision limits the ability of the courts to interpret the right of equality for Palestinian citizens of Israel in ways that conflict with Israel’s privileging of Jews, making it ineffective in providing real equality for Palestinian citizens of Israel even if it might be more effective in providing equality among Israeli Jews. Thus the courts can strike down discrimination in the state against Jews, like policies that denied females a chance to be fighter pilots, while upholding policies that discriminate against non-Jews, like the “Admissions Committees Law” that allows Jewish Israeli communities to deny housing applicants who do not fit into the “social and cultural fabric” (i.e. they are not Jewish) of a residential community.

Discrimination has never been so explicitly enshrined into Israeli law, with constitutional weight, until the passage of the new “Israel as the Nation-State of the Jewish People” basic law.

Even though the United States had a constitution and Israel did not, history clearly shows that a constitution alone did not prevent discrimination in the United States. Indeed, many would point to the Reconstruction amendments to the US Constitution as the point when the United States became a democratic system. The 14th amendment, whose 150th anniversary just passed, declared birthright citizenship as well as equal protection of the laws. This clause has been a primary tool for striking down discriminatory laws and practices during the past century and a half. Despite these statutes, citizens of the United States also know they are far from a truly equal society, and discrimination in various facets of society still exists. In Israel, however, the concept of equal protection under the law is wholly absent, leaving the courts to interpret the concept and its application if and when they see fit.

The New Nation-State Law

While discrimination has always been a factor in the laws and policies of the state of Israel, it has never been so explicitly enshrined into Israeli law, with constitutional weight, until the passage of the new “Israel as the Nation-State of the Jewish People” basic law. It states that the “Jewish people” (not just Jewish citizens of Israel, but Jews all over the world) are the sovereign in the state of Israel and are the only people with a right to self-determination within it.

In case there is any doubt about what this law means, Avi Dichter, a Knesset member and key sponsor of the bill since its introduction in 2011, said after its passage last week, “We are enshrining this important bill into a law today to prevent even the slightest thought, let alone attempt, to transform Israel to a country of all its citizens.”

The bill was controversial in Israel and passed narrowly, with 62 votes in favor and 55 opposed. It was revealing that much of the opposition to the bill was not because the bill was discriminatory; rather, as expressed by both the attorney general and the Israeli president, opponents were more concerned that the law would further damage Israel’s international reputation than lead to any significant changes in Israel itself. In other words, members of the opposition in Israel today—what is left of the heirs of David Ben-Gurion and his generation—continue to try outwardly to balance the incompatible notions of a Jewish state and a democracy to placate the international community. The ruling parties, however, do not even care to pretend anymore and have chosen to posture before the Israeli electorate by proudly and publicly embracing discriminatory laws for the whole world to see. Emboldened by a racist, nationalist administration in Washington and a rising tide of their ilk across the globe—from Viktor Orbán, the prime minister of Hungary, to Richard Spencer, the American white supremacist who is one of the leaders of the alt-right movement—the Israeli government today feels proud enough to boldly proclaim its separate and unequal ethos.

The salient question that remains is: what will be the response from those in the international community who believe in equal rights as the cornerstone of democratic society? We know where the Trumps and Orbáns and Spencers and Netanyahus of the world stand on this issue. It is now time for those who believe in equality and democracy to raise their voices.

Yousef Munayyer is a Non-resident Fellow at Arab Center Washington DC. To learn more about Yousef and read his previous publications click here