It’s now 100 years since then British foreign secretary, Arthur James (later Lord) Balfour sent a letter to the then Head of the British Zionist Organisation, Lord Rothschild, in which he stated on behalf of the British crown and state, support for “the establishment in Palestine of a national home for the Jewish people… it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine…”. Otherwise known as the ‘Balfour Declaration’, this letter would outline British policy support for Zionism. The political will enshrined in this letter would go on to play a leading role in the creation of Mandatory Palestine, later to become Israel and the Palestinian territories. In a cynical attempt at state domination that fallaciously claims dominion over the voices of the entire Jewish population, The Likud party, led by Netanyahu, uses its status as the majority leading party in Israel as claim on the definition of ‘Jewishness’; a political strategy that unfairly homogenizes the diversity of political opinion across the Jewish community. It would sow the seeds of an Israeli regime driven by the cartographic conquest and legislative disavowal of Arab Palestinians that continues today.
The foundation of Israel triggered a legal-political regime that lives in 2017 to assert supremacy over its citizens in the name of the ‘Jewish nation’ – with disturbing consequences. Final voting on the implementation of the ‘Basic Law: Israel as the Nation State of the Jewish People’ is soon to take place, inscribing into law the state of Israel as “the national home of the Jewish people”, explicitly stating: “The right to exercise national self-determination is unique to the Jewish people.” In other words, the principle of equal rights and fair equality of opportunity – having the right to live freely as an independent human being – is exclusive to the Jewish people of Israel. The passing of such a law would formally legislate Israeli nation state sovereignty as inextricable from the supremacy of the Jewish population over its non-Jewish, Arabic-speaking citizens. In reality, the Israeli state doesn’t protect jewish people; Mizrahi, Arab and Ethiopian jewish people have suffered under the same policies that exclude Palestinians from Israeli public life. But using an ethno-religious identity as a justification, Israel can present its most dubious, cynical economic and political manouvres as unimpeachable – simply there to protect the interests of historically marginalised population. Such a move should also worry jewish people of european origin (broadly speaking, Ashkenazim and Sephardim) – as it presents the greatest risk to Israeli democracy since its foundation, demonstrating how legal and political manoeuvring can reify ethnic inequality and strip a certain demographic of their human rights. Whilst such discrimination is woven into the history of Israel as a state, and is not new in the daily lives of 20% of Israel’s population, legally state-sanctioned supremacy would shatter any efforts to bring about peace, and rob Arab citizens of any hope for equality in Israel.
Laying legislative foundations.
The history of the foundation of Israel offers a timeline of a legal apparatus that legislates the targeted alienation of Palestinians from their homes, their history, and their rights. Britain’s mandate over Palestine was assigned by the League of Nations in 1922 to partition Palestine’s land in order to establish a national Jewish homeland that did not prejudice the civil and religious rights of a now ‘minority’ Arab population. There had long been jewish populations in Palestine – but after years of displacement and pogroms – culminating in the Nazi Holocaust, governments across Europe. A mixture of atoning for the sins of world war two combined with colonial ambitions to secure rule over Palestine, not to mention lingering anti-semitism in the minds of some zionists. (The thought running: we must establish a jewish state so that we aren’t forced to resettle jewish refugees on our our territories). After much tension and violence between Arab residents and their new Jewish neighbours, Britain failed to reconcile the conflicting demands of the competing sides – with tensions erupting into civil war in 1947 – and thus requested the matter be discussed by the United Nations General Assembly. In November 1947, the Assembly endorsed the UN Special Committee’s ‘Partition Plan’ and recommendation of the establishment of an independent Jewish state in Palestine, along with a neighbouring Arab state. On 14th May 1948 the “Jewish State”, Israel, and its independence from the British Mandate was declared. The promised neighbouring state has ever been created for the Palestinian Arabs.
The day after, the civil war mutated into an inter-state conflict that significantly altered the demographic arrangement of the Middle East, with 700,000 Palestinians fleeing or expelled from their homes in the territory now declared Israel. Exploiting laws dating back to the Mandate, the new state of Israel quickly got to work using legal power to demarcate land and define its purpose based on ethno-racial contingencies that applied almost exclusively to Palestinians. This forced exodus, known amongst Palestinian Arabs as ‘Al-Nakba’ – ‘the catastrophe’ – triggered an administrative and legislative disavowal of Arabs in Israel that used the law to define the land.
The state began to demolish Palestinian homes in June 1948 in a strategy of destruction and deterrence that permanently robbed those fleeing the conflict of their houses, apartments, farms and livelihoods. They had no rights, and nowhere to return to. The Emergency Land Requisition of 1949 allowed the government to sequester Palestinian land in the event of an emergency: the state of emergency allowed the government to make over 1000 orders. Thus, the creation of the state of Israel was bound up with a declared state of emergency; claiming land and then ruling post-hoc on its legality; aiming to reconcile “the twinned pillars of liberal empire: conquest by force and rule of law” that concentrated Palestinians into a territory of legislative and cartographic exception. In Ben White’s ‘Palestinians in Israel: Segregation, Discrimination and Democracy’ he describes a scale of expulsion so significant that of those new Jewish settlements founded between 1948 and 1953, 95% were on the property of absent Palestinians, labeled ‘absentees’.
It was 1950 that these absentees were specifically targeted by the ‘Absentee Property Law’. Excluding Jewish Israelis from its provisions, it focused on Palestinians who had fled Israel after 29 November 1947, or who had abandoned their homes and land, and stripped them of all their movable and immovable property, now placed under the control of the State of Israel. In a strategy of administrative and territorial expansion, in 1953 this was combined with the ‘Land Acquisition Law’, targeting those Palestinians who had remained; it allowed the Ministry of Agriculture to declare land ‘uncultivated’ and expropriate it for Jewish use. In so doing, the Israeli government legally stole another 40% of the land owned and lived on by Palestinians. In a process of state obstructionism, communities like the Bedouin from the Southern Naqab region – with a population of 65-95,000 before the 1948 war – lost 90% of their land and, despite 3,200 legal claims by Palestinians since then, to date not a single Arab has been awarded full ownership rights of land and property that had once been theirs.
In a display of colonial hegemony, a state administration ensnared the power of the law and the lay of the land to disavow the homes and the lives of thousands of Palestinian Arabs in the name of the state of Israel; the passing of the Basic Law: Israel Lands in 1960 legalised a mandatory transfer of 93% of the land of Israel to the state. Then, calculated to finalise a brutal process of state-imposed shock targeting the remaining Arab population, came the ‘Planning and Construction’ Law of 1965, legislating a violent dispossession sanctioned by and for the state, giving it the power to designate land ‘residential’ and ‘non-residential’. The violence of this territorial annexation not only saw the homes of hundreds of families rendered void or non-existent by the state, robbing them for years to come of essential infrastructure, but also declared the power of the Israeli state administration to bind the law and the land to its political agenda.
According to John Reynolds:
“The emergency [in Israel] does not produce something novel or exceptional, but rather reproduces colonial nodes of governance through proliferation of law and legal stratification.”
Israel has no formal constitution, rather a set ‘Basic Laws’ that deal with the role of the state’s principal institutions, relations between the state’s authorities, and civil rights. Since 1992, these laws have been considered the most significant and powerful in Israel, with the state maintaining the aim that one day they will be combined to form a constitution. These Basic Laws are still being created and amended today, meaning that the Knesset enjoys de jure parliamentary supremacy, allowing it to pass any law by a simple majority vote (61 out of 120 members).
The latest installment in this array of quasi-constitutional laws, a ‘Nation State bill’ entitled ‘Basic Law: Israel as the Nation State of the Jewish People’ will continue an administrative legacy of ethno-racial social and territorial partition. Whilst not really re-defining an already de facto political and social reality for Israel’s Arab population, its re-inscribing cultural and political battlegrounds further entrenches a historic impasse between the governments of Palestine and Israel, posing a danger to the entire region. It explicit relegates the Arabic language to ‘special status’, assigns Hebrew as the only state language, as well as stating that the right to self-autonomy – that is the right to be a free, independent citizen of a country – is exclusively of the country’s Jewish population, Indeed, commentators fearfully speculate the shift in political gravity that the passing of the law could trigger, and the precedent it would establish as part of an increasing assault on the rights of Israel’s Arab citizens. The law already comes after the Kaminitz bill, created to punish further those dispossessed Arab communities given no choice but to build houses and communities illegally, as well as to rob these communities of the right to legal appeal. The Nation State bill makes provisions to replace the court’s independence and process to carry out constitutional review with the executive and legislative branches of the most right-wing government in Israel’s short but significant history. In combination, the two legal developments point to a disturbing restructuring of legal impartiality that continues to delegitimize Israel’s claims to democracy. A loss of judicial appeal would be combined with the enshrining into law of the freedom of the state to carry out population transfers or removal with impunity, not only shifting the balance of territorial rights in Israel but assigning the rights ordained by democracy exclusively to the Jewish population. Rather ironic for a state fond of calling itself ‘The Middle East’s only democracy’.
As Marzuq Al-Halabi has outlined, the most significant danger here lies not primarily in what the law plans to do and who it privileges, but what and who it neglects to mention. By entirely ignoring the Arab population within its sovereignty, the law consigns Arab citizens – 20% of the country’s population – to a legislative limbo ripe for exploitation by violent right-wing ideologues. Giorgio Agamben writes about tyrannical governments that use law and power to create ‘bare-life’ – rendering populations and places absent of political and legal protection – with frightening parallels to what the Nation State Bill could inflict on the Arab population. This ‘bare-life’ community suffers the continued threat of potential violence, omitted from the rights to life as a citizen of a nation-state that disavows them.
Whilst the Israeli administration has recently made moves to oppress dissent both within its Parliament, and from the international community, many organizations are aware of the impending threat such a law could realise. Organisations like the Association of Civil Rights in Israel and Adalah continue to use the law to resist the racism of the current regime and its deliberate disavowal of the Arab population. Others, like Mossawa, continue to create and sustain Arab grassroots political organising in Israel to build a resistance to discrimination that reaches the chambers of the Knesset and its Arab MKs.
Israel’s own president, Reuven Rivlin, has recently publicly spoken out against the current administration’s threat to the country’s democracy. By allowing democracy and the rule of law to mutate into something that can be used by governments to suit their ideologies with impunity, we risk legitimising an irreversible normalization of discrimination and disavowal in Israel that sets a dangerous precedent. Whilst Arabs in Israel struggle to resist a racist regime that would prefer to strip them of their rights entirely, the international community must continue to call out the contravention of human rights in Israel against its Arab citizens.