Anna Roiser
Anna Roiser

What was the Nation State Law really about?

Protest against the Nation State Law, July 2018. Photo credit: Standing Together
Protest against the Nation State Law, July 2018. Photo credit: Standing Together

Last week, Israel’s Supreme Court upheld the controversial 2018 Nation State Law. Ten of the eleven judges rejected claims that the quasi-constitutional law conflicted with democratic principles by discriminating against Israel’s Palestinian citizens in declaring that national self-determination in Israel is unique to the Jewish people, downgrading the official status of Arabic and declaring “Jewish settlement” a national value. Only Justice Karra, the sole Palestinian-Arab judge, disagreed.

When it was passed by the Knesset, the law triggered protests in Israel and even prompted rare criticism of the Israeli government from the Board of Deputies. However, many on both the right and the left argued that the law changed nothing — the right saying it merely affirmed Israel’s character as a Jewish state, and the left arguing that it reflected the longstanding reality in which Palestinian citizens of Israel have inferior status.

So what motivated those behind the law — what fears were they seeking to allay? And what does that tell us about Israel today?

Little of the commentary around the Nation State Law has acknowledged that it developed in response to a set of documents produced in 2006/07 by Palestinian intellectuals, academics and activists in Israel — The Future Vision of Palestinian Arabs in Israel, The Haifa Declaration and Adalah’s Democratic Constitution. Known as the “Vision Documents”, each provided a historical narrative of the state from the perspective of its Palestinian citizens and set out a vision for the state’s future (on the assumption a two-state solution would materialize).  They envisioned an Israel in which Palestinian history in and connection to the land was recognized, and in which Palestinians had, within the framework of the state, national self-determination — collective rights such as autonomy over education, culture, media and religion; effective participation in state-level decision-making and a fair allocation of resources.

The proposals reflected the developing international consensus on minority rights: political philosopher Will Kymlicka identified that western democracies generally grant collective rights to “homeland” minorities, who settled in a territory prior to it becoming part of its current state, but grant only individual rights to “new” minorities, admitted as immigrants after establishment of the state. Israeli political philosopher Chaim Gans cites Canada as an example: Anglophones, Francophones and First Nations have the right to self-determination as homeland minorities, whereas Sikhs, a new minority, have only individual rights.

Palestinians in Israel are clearly a homeland minority, but this has never been recognized by Israel and they have no collective rights — in other words, they are treated as immigrants in their homeland. The Vision Documents sought to challenge this.

From right to left, the Jewish-Israeli reaction to the Vision Documents was, to quote Israel Studies professors Ilan Peleg and Dov Waxman, “overwhelmingly negative and hostile”. Following their publication, the Institute for Zionist Strategies (IZS), an Israeli think-tank, coordinated meetings of influential Israelis from across the Zionist political spectrum to discuss how to respond — and concluded that a Nation State Law was needed.

In a 2009 paper referring explicitly to the Vision Documents, the IZS warned that a “small group of intellectuals have been advocating a radical liberal form of democracy which would elevate the ideal of absolute equality among all groups”, meaning that “one must treat Jews and Arabs, as individuals and as a collective, identically” (original emphasis). Collective equality would, they argued, damage Israel’s Jewish character, making it “imperative” to enact a law “defining explicitly [Israel’s] Jewish character and mission”.

From 2009 the IZS worked with Knesset member­ Avi Dichter, then a member of the centrist Kadima party, on the Nation State Law; it was presented to the Knesset in 2011 and, after much ­­delay and wrangling, passed in 2018. The law cemented Jewish collective rights — affirming the state’s national symbols as Jewish and exclusively promoting Jewish settlement — and, by stipulating that national self-determination in Israel is only for Jews, barred Palestinian collective rights. This was reinforced by the downgrading of Arabic — its status as an official language had been the sole formal recognition of Arab history in the land. Celebrating the passing of the law, Dichter proclaimed: “the most you [Palestinian citizens] can do is to live among us as a national minority that enjoys equal individual rights, but not equality as a national minority”.

The Vision Documents’ proposals stood little chance of ever becoming reality, and by the time the Nation State Law passed, they had lost any momentum they ever had within Israel’s Palestinian society. So why was the very suggestion of collective equality, or national self-determination, for Palestinians in Israel perceived as so threatening?

At one level, it would result in the transfer of some power from Jewish to Palestinian hands, and advantaged groups generally seek to retain their power. At another, it has been suggested that the law could be used if Israel annexes of large parts of the West Bank, to retain the state’s Jewish character even if Jews become a minority.

There may also be a deeper explanation.  Chaim Gans characterizes the prevailing conception of Zionism as “Proprietary Zionism”, which sees the (entire) Land of Israel as having always belonged to the Jews, and been taken from them unjustly, meaning they never lost ownership. Gans argues that Palestinians are therefore perceived as squatters on land stolen from the Jewish people, meaning that granting Palestinians collective rights based on their historic presence in Israel would be seen as “tantamount to granting rights to a thief”.

Gans argues that the belief that the entire Land of Israel has always belonged to the Jews alone also underlies Jewish Israeli support for West Bank settlements: public land in the West Bank “cannot belong to the Arab collective because the Arabs enjoy no collective proprietary rights in the Land of Israel”.

Conflict Studies Professor Nadim Rouhana identifies a related belief common in Zionist thought: the denial not only of the historical Palestinian claim to the land, but also of Palestinian attachment to it. Rouhana argues that this denial is necessary for Zionism to morally legitimize the uprooting of Palestinian people from the land which took place in 1948 during the Nakba, and which continues today through the dispossession of Palestinians in the West Bank, East Jerusalem and the Negev.

Accepting that Israel’s Palestinian citizens are a homeland minority entitled to collective rights would necessarily accept their history in, connection to and rights in the land, challenging some of Israel’s foundational myths and undermining the ideological basis of the settlement project. The Nation State Law’s exclusion of the possibility of Palestinian collective rights in Israel can therefore be understood as part of wider Israeli efforts to deny the Palestinian connection to the land.

Yet whilst national self-determination for Palestinian citizens might challenge prevailing Zionist narratives, it is not intrinsically incompatible with Zionism, and some Zionist thinkers have explored how a balance could be struck. In their book Israel’s Palestinians: The Conflict Within, Peleg and Waxman propose that rather than being a “Jewish state”, Israel should be a “Jewish homeland and state of all its citizens”, in which Palestinians are recognized as a homeland minority and granted collective rights. Gans’ concept of “egalitarian Zionism” (proposed as an alternative to proprietary Zionism) argues that Jews and Palestinians in Israel should both have autonomy at sub-state level, only departing from the principle of equality to the extent necessary to ensure a Jewish majority and state security. While both proposals assume a traditional two-state solution, now slipping ever further out of reach, respect for the collective rights of both Palestinians and Jews is likely to be integral to any solution.

The Supreme Court’s decision to uphold the Nation State Law surprised no one: striking down the law would have been perceived as a bold political intervention and resulted in an escalation of the attacks to which the court is already subject. Only Justice Karra in dissent held that the law is undemocratic because it puts Jewish national interests above democratic principles by excluding non-Jewish citizens.

The Nation State Law demonstrates that Israel remains a nation unable to come to terms with its past by recognizing the true character of its Palestinian population as a homeland minority, as part of a people whose long history in the land was disturbed and uprooted by the fulfillment of the Zionist vision. Until this history is acknowledged and respected, and Palestinian citizens attributed the rights flowing from it, meaningful equality for Palestinians and Jews in Israel will remain out of reach.

About the Author
Anna Roiser is a lawyer also studying part-time for an MA in Israeli Studies at SOAS.
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