Commentary on Israel's New "Nation-State" Law

Full text of the law in English translation, published by the Jerusalem Post.

1.  The State of Israel
a) Israel is the historical homeland of the Jewish people in which the state of Israel was established.
b) The state of Israel is the nation-state of the Jewish people, in which it actualizes its natural, religious, and historical right for self-determination.
c) The actualization of the right of national self-determination in the state of Israel is unique to the Jewish people.

Comment by Amir Fuchs:

The stated purpose of the bill, at least according to some of its supporters, is to override the “constitutional revolution” of 1992 and erode the legal interpretation of the Supreme Court that the right to equality applies to non-Jews as well. A law of this sort, which is not balanced by an acknowledgment of absolute equal rights for minorities (in contrast with the balance expressed in the Declaration of Independence), is a law that seeks to alter the status quo rather than safeguard it. The bill clearly has the potential to turn into a “deal-breaker,” jeopardizing the balance between Israel’s identity as the Jewish national home and its identity as a democracy. No other nation-state defines itself in such a way, with no mention of democracy or minority rights. 

Clearly, the bill’s real goal is to sabotage the existing ruling of the Supreme Court, according to which Israel’s status as a nation-state does not imply that Jewish citizens have privileges which other citizens do not. There is no better proof for this than the explicit opposition to including the right to equality in the bill.

RL: Notice that the law excludes the possibility that the "right of national self-determination" might exist also for Arabs in the state of Israel. While the law doesn't mention Palestinians in the West Bank and Gaza, it implies, in my opinion, that only Jewish national self-determination has any legitimacy between the (Jordan) River and the (Mediterranean) Sea. As such, it is the mirror opposite of the BDS cry: "Between the River and the Sea, Palestine will be free," which completely negates any legitimacy to Jewish national self-determination.

Comments by Zachary Braiterman:

It undermines democracy in Israel, subordinates democracy to Jewishness, violates the spirit of the Declaration of Independence and its statement regarding “complete equality of social & political rights to all its inhabitants irrespective of religion, race or gender.” Against the vision of Israel’s founding fathers, including deep democratic impulses in classical rightwing Revisionist Zionism, there is no mention of rule of law, equality, equal citizenship, human dignity.

Regarding religion and state, it is unclear what constitutes a “religious right to self-determination” and how this might be constituted. But there it is, the invention of a new right for religion, in this case Jewish religion only, slipped surreptitiously into the law. It should be noted how religious discrimination against Muslims and Christians is rooted in another exclusive relation between Jews and the State.

2.  National symbols of the State of Israel
a) The name of the state is Israel.
b) The flag of the state is white, two blue stripes near the edges, and a blue Star of David in the center.
c) The symbol of the state is the Menorah with seven branches, olive leaves on each side, and the word Israel at the bottom.
d) The national anthem of the state is "Hatikvah"
e) [Further] details concerning the issue of state symbols will be determined by law.

RL: All of these details were already part of Israeli law and practice.

3. [The] unified and complete [city of] Jerusalem is the capital of Israel.

RL: This is also not new - Jerusalem officially became the capital of Israel in about 1950, and the language of "unified Jerusalem" has its origin in the period right after the Six Day War, when East Jerusalem and the West Bank were captured from Jordan.

4. The Language of the State of Israel
a) Hebrew is the language of the state.
b) The Arabic language has a special status in the state; the regulation of the Arab language in state institutions or when facing them will be regulated by law.
c) This clause does not change the status given to the Arabic language before the basic law was created.

RL: Hebrew is the language of the state, despite the fact that the native language of 20% of the country is Arabic, not Hebrew. This provision of the law formally gives a second-class status to Arabic.

Zachary Braiterman:

Arabic language is demoted from being an official language of the state to being to a special one. It’s unclear how clause C follows clause B. The status of Arabic language in Israel, such as it is and such as it could become, is definitely damaged.

5. The state will be open to Jewish immigration and to the gathering of the exiled.

RL: Also not new, and already stated in Israel's Declaration of Independence.

6. The Diaspora
a) The state will labor to ensure the safety of sons of the Jewish people and its citizens who are in trouble and captivity due to their Jewishness or their citizenship.
 b) The state will act to preserve the cultural, historical and religious legacy of the Jewish people among the Jewish diaspora.

Comment by Shuki Friedman (director of the Israel Democracy Institute’s Center for Religion, Nation and State, and lecturer in law at the Peres Academic Center):

Previously the bill said that state will act to preserve the link everywhere – in Israel and in the Diaspora as well. This legalistic turn of phrase has great practical significance, as it essentially allows the government of Israel to carry out any action in Israel that may harm Jews in the Diaspora or Israel’s relationship with them. This small yet far-reaching change was made against the background of the tensions with non-Orthodox streams of Judaism and the struggle to define prayer norms at the Western Wall, and paves the way for the state to exclude international Jewish sectors from the process. The supporters of the bill claimed that one of its pillars was providing a legal-constitutional status to the connection of the State of Israel with Jews in the Diaspora, yet what has emerged is precisely the opposite. Instead of strengthening the bridge with the Diaspora, the State of Israel is placing more explosives beneath it, which are one day certain to destroy it.  

Comment by Gil Hoffman:

The old version of the bill said that: “The state will take action to maintain the connection between the state and the Jewish people wherever they are.” 

The new version released Monday replaced “wherever they are” with “in the Diaspora.” 

UTJ MK Uri Maklev told The Jerusalem Post that he requested the change, because he did not want the state to help Diaspora Jews advance religious pluralism in Israel in general and at the Western Wall in particular.

7. The state views Jewish settlement as a national value and will labor to encourage and promote its establishment and development.

Editorial by the Jerusalem Post:

In reality, the state combines aspects of all of the streams of Zionism which built it. It enshrines privileges to Orthodox Judaism. It has hundreds of communities that openly discriminate based on religious and national factors. The education system offers several streams to citizens but in essence segregates them into separate Arab and Jewish systems, and within the Jewish system into different religious streams. It is a compromise state in this respect. No one would mistake the State of Israel for anything but the nation state of the Jewish people. 

But right-wing religious parties fear that these aspects of the state could be eroded in the future and want them anchored in law. “Those who do not know how to defend Israel as a Jewish state in a practical way should return their keys and go home,” MK Bayit Yehudi MK Bezalel Smotrich said on Sunday, criticizing Netanyahu’s attempt at compromise. Aymen Odeh, chairman of the Joint List, argued Saturday that it was important to raise a hand against creeping “fascism” in the country.

Since a Supreme Court case in 2000 brought by Adel and Iman Kaadan, discrimination against Arabs seeking to move to or join Jewish cooperative settlements has ostensibly been against the law. But the ruling didn’t bring the equality that rights activists thought it would. The NGO Adalah was still fighting cases in 2016 against the Israel Lands Authority regarding a company’s refusal to sell homes to Arab Israelis. Most recently, protests were held in Kfar Vradim and Afula after plots there were sold to Arabs. 

This points to widespread de facto discrimination and segregation between communities. Some of this segregation is put down to the fact that different communities self-segregate. But rights activists have asked why, for instance, Negev Beduin were not permitted by the state to build communal settlements on state land the way kibbutzim or moshavim were over the last 70 years. Opposition to the nation-state bill and compromises therefore only address part of the elephant in the room. Arab and Jewish citizens should not have to go to court to move to a community. In a community near Sderot discrimination against Mizrahi residents forced them to seek legal redress to move in. Ethiopian Jews have faced hurdles in access to housing. 

Struggling against segregation is not just about one law. It is about the larger struggle for coexistence and having more contact between Israel’s numerous diverse communities. The discussion of the nation-state bill should give impetus to a discussion about how we can bridge gaps in society and coexist. The state is a Jewish state, but in its soul it is also a state where coexistence should be a powerful value underpinning its strength in a region where intolerance too often dominates. 

8. The Hebrew calendar is the official calendar of the state and alongside it the secular calendar will serve as an official calendar. The usage of the Hebrew calendar and of the secular calendar will be determined by law.

9. National Holidays
a) Independence Day is the official holiday of the state.
b) The Memorial Day for those who fell in the wars of Israel and the Memorial Day for the Holocaust and heroism are official memorial days of the state.  

10. Saturday and the Jewish Holidays are the official days of rest in the state. Those who are not Jewish have the right to honor their days of rest and their holidays. Details concerning these matters will be determined by law.

RL: sections 8-10 have already been in practice for many years.

11. This Basic Law may not be altered except by a Basic Law that gained the approval of the majority of the Knesset members.

Zachary Braiterman's conclusion:

What the Jewish Ethno-State Law is supposed to fend off is that final reckoning when Jews become a minority in the entire territories under sovereign Israeli political and military control. This is an opening gambit to annexing the West Bank, or large parts of the West Bank, and keeping West Bank Palestinians disenfranchised non-citizens in an apartheid-like polity. One day, Israel will have to make a choice between Jewishness and democracy, absent a Jewish majority. This law stacks the deck in advance. In the Jewish majority running roughshod over the Palestinian minority who are citizens of Israel, the way is opened for Israel to continue controlling and even annexing the West Bank while safeguarding what will one day be Jewish minority rule in the total area comprising Israel and the West Bank.

Where are the children?

Where are the children, and why haven't they been reunited with their parents yet?

The Trump administration said in a court filing late Thursday that it has reunified 364 of more than 2,500 migrant children separated from their parents at the U.S. southern border, just one week out from a court-ordered deadline. 

Of 1,607 parents eligible to be reunited with their children, the filing said, 719 have final orders of deportation, meaning they could be removed from the country as soon as they are reunited. Those parents may have to choose between bringing their child back to a violent country or leaving them behind in the care of the government, nonprofits, foster families or relatives in order to seek asylum in the United States. 

“That’s a pretty horrifying statistic,” said Lindsay Toczylowski, Executive Director of Immigrant Defenders Law Center, of the 719 figure. “We have had such limited communication with parents it was difficult to know where they were in their case.”  

Toczylowski said the number was “way higher than I thought,” and said attorneys would need to immediately make contact with reunited families to advise them on potential legal avenues to stay in the United States.

Holocaust deniers try to disrupt conference on Mennonites and the Holocaust

In March 17 and 18, I went to a conference on Mennonites and the Holocaust that was held at Bethel College in North Newton, Kansas. It was very interesting, and I've been meaning to write up my impressions, but haven't gotten to it it.

The conference was disrupted a couple of times by a Mennonite denier of the Holocaust named Bruce Leichty, who was finally kicked off campus by the local police. He attempted to speak a couple of times during the question and answer period after the academic presentations, but was told to leave by the conference organizers.

Update: Lisa Schirch, in a contribution to the blog Anabaptist Historians, describes one of the incidents when Leichty attempted to disrupt the conference:

A Mennonite holocaust denier, Bruce Leichty, attended parts of the conference. Leichty is a California-based lawyer known for representing the Holocaust deniers Ernst Zundel and his Mennonite wife Ingrid Rimland Zundel. Leichty has passed out anti-semitic literature at the past several MCUSA gatherings. At the introduction of the conference, the organizers told the audience there was someone attending the conference who they were watching. But many were not in the room or did not understand what was being said. When Leichty began to ask an offensive question during the conference, the organizers removed him by calling campus security, but did not inform the audience of who the man was or why he was being removed. The lack of communication confused many in the audience.

Two of his compatriots in Holocaust denial, who are affiliated with the antisemitic group Deir Yassin Remembered (DYR), also went to North Newton - Daniel A. McGowan, emeritus professor of economics at Hobart and William Smith College in Geneva, New York, and Henry Herskovitz, who leads a weekly vigil outside a synagogue in Ann Arbor, Michigan. I saw and heard Leichty, but didn't see McGowan or Herskovitz, but apparently Herskowitz was hanging around the auditorium where the conference was held and he was also told to leave campus by the police. Herskovitz wrote up his reaction on his blog, hosted on the DYR website, where he wrote that Leichty was arrested and held by the local police for a number of hours. His arrest is recounted in an article posted on a Holocaust denial website, which I will not link to.

Herskovitz says that he and McGowan intended to give a kind of counter-talk outside the conference at a at a local meeting hall, called "Two Revisionist Jews Consider the Holocaust," and Leichty tried to hand out flyers about this meeting to the people at the conference. In all the reading I've done by and about McGowan, I've never seen the claim that he himself is Jewish, so I'm not sure where the title comes from. [I just looked again at Herskovitz's post, and he provides a link to a farcical document where he and Paul Eisen declare McGowan to be a Jew; Eisen is a co-founder of DYR].

The conference itself was very moving to me as an outsider, because so many of the Mennonite speakers and attendees were obviously troubled by the fraught history of Mennonites during the Holocaust. Mennonites were not persecuted by the Nazi regime, and in some places (Germany, Poland, and Ukraine) some collaborated with the Nazis, even to the extent of being part of one of the Einsatzgruppen (in Ukraine) - the Nazi killing squads that targeted Jews. Some Mennonites did try to protect and hide Jews, but most did not (as most European Christians did not). One of the talks was about Mennonites in the Netherlands who did work to rescue Jews.

Given the pained sincerity of most of the participants in the conference, it was really a violation to have Leichty appear and attempt to disrupt these difficult conversations with his crude and obtuse attacks upon historical truth. It is a pity that he and the other two deniers decided to push their agenda at such an important conference.

Update: Leichty apparently has a long history of pushing his antisemitic and Holocaust denial views among Mennonites. Vic Rosenthal, writing in Fresno Zionist in 2007, describes a talk organized by Leichty in a local Mennonite church. The speaker was Ingrid Rimland Zündel, wife of Ernst Zündel, who was imprisoned in Germany for Holocaust denial. The pastor of the church himself did not want Rimland Zündel to speak, and passed out flyers to try to dissuade people from going in and listening to her.

More on Leichty from the ADL: Anti-Semite Christopher Bollyn Scheduled to Attend 9-11 Events in California. 

Leichty is a problematic figure who has defended a number of Holocaust deniers, including Ernst Zundel, who is imprisoned in Germany for denying the Holocaust. Leichty also represented 9-11 widow Ellen Mariani in lawsuits against various entities she held accountable for her husband’s death. In motion papers, Leichty apparently used research from Bollyn to make spurious accusations against a Jewish judge on the case. In May 2012, the United States Court of Appeals sanctioned Leichty and Mariani for making frivolous arguments before the court and also highlighted the anti-Semitism reflected in the papers filed by Leichty.

Leichty is also a believer in other conspiracy theories, including those about the 9/11 attacks. He belongs to a group called "Lawyers for 9/11 Truth."

Leichty's antisemitism also showed up in a lawsuit he brought on behalf of a widow of a man who died in the 9/11 attacks: 9-11 Widow and Lawyer Sanctioned for Raw and Ugly Antisemitism. For a more objective report, see the New York Times article: Court Penalizes a Lawyer Over Slurs in a 9/11 Filing