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.