The principal vision of the Basic Law: Israel—The Nation-State of the Jewish People (the Nation-State Law) is premised on the rights and interests of the Jewish people in Israel and the world, and the disqualification of any values of inclusive citizenship guaranteeing the equal membership of Palestinian citizens of Israel (hereafter, '48 Palestinians). This is evident both in the Nation-State Law's articles and in the statements of the politicians who drafted and sponsored it. The exclusivity of rights in the “Land/State of Israel” is the central organizing principle of the Nation-State Law. Jews are deemed the sole people deserving national and collective rights. Furthermore, the law applies not only to the Jewish citizens of Israel but also to Jews from all parts of the world—regardless of the extent of their relationship, affiliation, or even desire to become part of this entity. Citizenship is thus reinvented as a transboundary ethnos that automatically subsumes Jews from across the world into an ethnoracially engineered reserve of potential citizens. Under the law, the state's guiding values and the legal rights it vouchsafes establish Jewish ethnoracism. This racism not only discriminates against Palestinians but refuses to recognize their existence. The law frames Palestinian land as an uninhabited space available for settlement.
Article A of section 1 (“Basic Principles”) of the law stipulates that “the land of Israel is the historical homeland of the Jewish people, in which the State of Israel was established.”1 Article 1-B continues, “The State of Israel is the national home of the Jewish people, in which it fulfills its natural, cultural, religious and historical right to self-determination.” Importantly, such a “right to exercise national self-determination . . . is unique to the Jewish people” (article 1-C). Not only is “Jerusalem, complete and united,” proclaimed the “capital of Israel,” but Israel is opened more broadly “for Jewish immigration and the ingathering of exiles” (sections 3 and 5). In article A of section 6 (“The Connection with the Jewish People”), Israel's prerogative “to ensure the safety of the members of the Jewish people and of its citizens in trouble or in captivity due to the fact of their Jewishness or their citizenship” is extended to Jews of the world and noncitizens. Palestinian citizens, however, whether in Israel or in the rest of the occupied territories, are only addressed implicitly, in the inverse formulations of these articles and in their palpable absence from the law writ large. Section 4 (“Language”), article B, for instance, demotes the Arabic language from an official language to one with “special status”: “The Arabic language has a special status in the state; Regulating the use of Arabic in state institutions or by them will be set in law.” Palestinians are represented only by the language they speak; otherwise, they are shunted offstage.
Even as the law grants Jews an exclusive right to self-determination in Israel, it does not demarcate the borders of the state. Instead, the law situates the state in the Land of Israel, that is to say, the historical land of Palestine that extends from the Mediterranean Sea to the Jordan River. Furthermore, by identifying the strengthening and consolidation of settlements as a national value without limiting settlement expansion to specified borders, the law maintains settlement as a project open to the entirety of historic Palestine. It is as if the law reactivates the “land without a people” statement, which was deployed by early Zionists as a pretext for colonial settlement. The law revives the theological idea of the Land of Israel and the Promised Land. This kingdom, according to the biblical narrative, was established on part, but not all, of the Promised Land. Consequently, certain rabbinical analyses have deemed the occupation of what has been previously unoccupied in the Promised Land legitimate.2
The ’48 Palestinians, who are the land's natives, are absented from the Nation-State Law. Also absent is any measure of inclusive citizenship as a basis for the social demos of the state. Citizenship instead emerges as exclusive and identity based. The expungement of Palestinians from the Nation-State Law is the corollary to the constitution of the Jews as the only group deserving collective political rights. This is despite the fact that Palestinians constitute half of the population in what the law calls the “Land of Israel”—that is, the historical land of Palestine. And whereas '48 Palestinians constitute 20 percent of the population and citizenry of the state without borders, their presence is inconsequential to the Nation-State Law or the rights it formulates.
The exclusive right to self-determination for Jews in Israel, despite the binational reality, is underpinned by an idea of a Jewish ethnos. Such an ethnos is built on a principle of inclusion by way of exclusion: the Jewish political group includes all those who self-identify as Jewish in accordance with three statutes—the Law of Return of 1950, the Nationality Law of 1952, and the Entry into Israel Law of 19523—and in accordance with related procedural definitions concerning ethnic blood identity, definitions that are repeatedly amended.4 Palestinians, by contrast, are defined only through their omission; their absence from the law is turned into a corresponding exclusion and subtraction from a political community. The deliberate disregard of Palestinians leaves them beyond legal relations and the public good. Instead, these relations are engineered to serve the interests of the Jewish people, who regardless of their presence in the world are granted the advantages of being “potential and actual citizens.” This hierarchized citizenship places Palestinians in real danger. It opens the door widely to dealing with them according to whim, without any controls or restrictions guaranteeing their protection—particularly necessary under conditions of emergency, such as war. In accordance with the logic of a nation-state of the Jewish people, all political and collective rights of the Palestinians have become conditional, dependent first and foremost on their compatibility with the superior rights of the Jews in the country. And if we consider that this superior status is the culmination of the 1948 war in its ethnic cleansing and expulsion of more than 85 percent of Palestinians from the areas constituting Israel today,5 the policies for the Judaization and Hebraization of names,6 the demolition of villages and cities in order to prevent the return of Palestinians,7 and the prohibition of the return of Palestinian refugees while supporting the naturalization of Jews, then it is difficult to ignore the specter of ethnic cleansing peering out from the Nation-State Law's folds.
It is also possible to glimpse this specter in the recent proposals of what has been known as the “deal of the century,” that is, Donald Trump's peace plan, which was shaped by and expresses the perspective of the Israeli right wing.8 On one hand, the deal indicated the intention to keep the settlers under Israeli sovereignty without dismantling any settlement, regardless of its location on Palestinian land. On the other hand, it proposed counting the Palestinian citizens in Israel who inhabit the Triangle Area as part of the population and land of the proposed Palestinian state—a group of enclaves falling under Israeli sovereignty, to be called a “state.” It was later disclosed that this was Israeli Prime Minister Benjamin Netanyahu's personal proposal.9 Given the deal's congruence with Netanyahu's vision, Israeli Minister of Justice Ayelet Shaked suggested calling it Netanyahu's proposal.10 The proposal to remove Palestinian citizens from the realm of Israeli citizenship, against a concomitant integration of Israeli settlers, illuminates what is at stake in the engineering of citizenship along ethnic and racial lines that absents Palestinians. This absenting further renders the citizenship status of Palestinians fragile, subject to arbitrary practices and to the whims of the state. Displaced from citizenship, Palestinians are primed to be displaced, once again, from their homeland.11 By contrast, the solid citizenship of Jews transforms any act—even illegal as per international law, such as the settlement of the 1967 occupied territories—into a protected and guaranteed right.
The ethnoracial national vision, as the organizing principle of the Jewish state, is not a contrivance only of the Nation-State Law. Rather, this vision is the culmination of decades of transformation in Israeli Zionist settler-colonial values, policies, and practices. On the most basic level, this vision is entwined in colonial policies founded on the eradication of Palestinian existence or its containment, on the one hand, and the expansion of Zionist Jewish existence, on the other. These colonial practices and policies were manifested explicitly during Israel's formative period in 1948 following the forced displacement and expulsion of Palestinians as well as the prevention of their return. These practices and policies enabled the establishment of Israel as a Jewish state in the Zionist sense. For the making of a Jewish majority would have been impossible had the Palestinians remained the majority in their homeland. The forced expulsion of Palestinians and their minoritization was an act of lawmaking violence, to use a Benjaminian concept, that enabled the formation of a Jewish majority that could then claim to have founded a Jewish state. Such are the foundations of Israeli racial sovereignty.12
This racial foundation is also evident in the Israeli Proclamation of Independence, which was drafted against the backdrop of the Nakba (1948 Palestinian catastrophe). Nevertheless, the document also speaks of equality and general democratic values that offer a minimal space for Palestinians to enter the margins of citizenship, though without an ability to influence its destination. The state was consolidated as Jewish through a set of central laws. These laws and their corresponding institutions attempted to actualize Israel as semi-clean of Palestinians so as to be able to declare it a national Jewish state. As the state closed the door for Palestinian refugees, banning their return to their cities and villages, it opened another door for Jews from around the world to enter Israel upon the enactment of the Law of Return of 1950 and the Nationality Law of 1952. Palestinians who managed to remain after the occupation of Palestine in 1948—amounting then to 10 percent of the new state's populace—were granted Israeli citizenship and were subjected to military rule.13
Internally, during the first decades, the state and its institutions were preoccupied with defining the “borders” of a Jewish citizenhood in accordance with the ethnoracial Zionist state's structure. The central question became, who is a Jew? The criteria according to which a person could be considered a Jew began to be set; this entailed identifying the relationship between religious and national identity. In that early period, the relationship between the values of democracy and the Jewish character of the state was forged through legislation concerned with Jewish religious matters, such as the Hours of Work and Rest Law of 1951, the Rabbinical Courts Jurisdiction Law of 1953, the State Education Law of 1953, and the Pig-Raising Prohibition Law (1962).14
On the ethnonational level, the state apparatus was regulated through a plethora of laws establishing the Jewish state and aimed at preventing a return to the status that preceded the 1948 ethnic cleansing operations undertaken on Palestinians. These laws include the Law of Return of 1950; Absentees' Property Law of 1950; Nationality Law of 1952; Entry into Israel Law of 1952; World Zionist Organization—Jewish Agency (Status) Law of 1952; Land Acquisition Law (Validation of Acts and Compensation) of 1953; and Basic Law: Israel Lands of 1960.15 The Absentees' Property Law defines persons who were expelled, who fled, or who left the country after November 29, 1947, mainly due to the war, as “absentee,” thereby authorizing the “Custodian for Absentees property” to seize their property.16 The World Zionist Organization—Jewish Agency (Status) Law of 1952 grants the agency the official right of “gathering” and transporting Jewish “exiles” to the Land of Israel.17 Basic Law: Israel Lands of 1960 prevents the sale of any land belonging to the Jewish National Fund, or to the state, to any third party. Israel could therefore lay claim to all the properties—land, houses, others left by refugees during the war—of displaced Palestinian refugees.
During these first decades, Palestinians who managed to remain in their homeland and become citizens in the new state languished under military rule in their villages and towns. They remained invisible, meek, and extraneous to the process of defining the Jewish state and its values, as well as debates between Orthodox, secular, liberal, and right-wing currents. However, this situation began to change with the occupation of the remaining Palestinian territories in 1967, which instigated the transformation of the Zionist state's essential question. If the fundamental question during the state's conception had to this point pertained to the identity of the Jew, a new focus on the borders of the state and the expansion of settlements to the newly occupied Palestinian land started to emerge.
The 1980s began to witness the commencement of a new debate pertaining to the state's self-proclaimed identity. Specifically, in 1985, the characterization of the state as “Jewish and democratic” was written for the first time into law (amendment 9 of section 7 of the Basic Law: The Knesset of 1985).18 The amendment was approved on July 31, 1985, in the wake of the Supreme Court's decree to ban both the Kach Movement, a right-wing Jewish party, and the Progressive Movement, a Palestinian party, from running in the elections for the Israeli Parliament (Knesset). The new provision, 7a, outlawed, inter alia, any parties inciting racism or seeking to negate Israel's existence as Jewish and democratic. Since the enactment of this amendment, and with almost every election, the Supreme Court receives cases brought by heads of parties, especially Palestinian heads, against the election commissions' decisions to ban them from running in the elections—whether under the pretext of incitement or of not recognizing Israel as a Jewish state.
In the early 1990s, against an emerging Palestinian political discourse that called for the transformation of the “Jewish and democratic” state into a state of all of its citizens, two additional basic laws were legislated that reaffirmed Jewish and democratic principles. There was the Basic Law: Freedom of Occupation (1994), which aimed at protecting “freedom of occupation, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.”19 Similarly, Basic Law: Human Dignity and Liberty, which was also enacted in 1992, aimed to “protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.”20
As the two basic laws seemingly sought to safeguard basic rights, they also affirmed them as part of the moral values of Israel as “Jewish and Democratic.” This writing into law of the Jewish and democratic formula has led to the rise of an intra-Israeli debate about the practical possibilities for reconciling the particular Jewish component, on the one hand, and the universal values of democracy on the other. These discussions demonstrate an implicit acknowledgment of the impossibility of merging of an exclusionary ethnic component and an inclusionary and protective universalist component. More significantly, perhaps, these discussions reveal the profundity of the state's sense of denial.
The 1990s were rife with additional contradictions, following the end the of hegemony of the founders' generation21—represented by the Mapai Party—and the beginning of the right's transformation into a central force.22 The conflict escalated during this period between the two forces. On the one hand, the Labor and Meretz parties pragmatically advocated for “peaceful resolution” with the Palestinians, as exemplified by the Oslo Accords, while insisting on identifying Israel as Jewish and democratic, and promising an opening—albeit conditional—toward equality for Palestinian citizens. On the other hand, the opposing Netanyahu-led right-wing nationalist forces saw in this openness a disaster. The assassination of Prime Minister Yitzhak Rabin and the election of Netanyahu in 1996 as the new prime minister spelled the end of this conflict in favor of the right. This inaugurated a period of steady ascension of the right, the intensification of settlement rhetoric and practice, the consolidation of Jewish nationalist values in relation to the Land of Israel, and the escalation of efforts to exclude and delegitimize Palestinians and their demands for collective rights.
Before proceeding any further, I must stop to discuss two closely timed, more recent developments that pertain to Israel's Jewish status. The first is Israel's demand to be recognized as a Jewish state by the Palestine Liberation Organization (PLO). During the negotiations held in Annapolis, Maryland, in 2007, Tzipi Livni, at the time the minister of foreign affairs and a member of the delegation, stipulated this recognition as a precondition for any Israeli-Palestinian peace agreement. On the eve of the 2009 election to the Knesset, Netanyahu raised the demand again. This time, however, and as a precondition for reaching any peace agreement between the two sides, he demanded not just a Jewish state but that the Palestinians recognize Israel as the nation-state of the Jewish people.
The second development is the warning of ’48 Palestinians over their rejection of the Jewish character of the state. On March 13, 2007—that is, four months before Livni communicated the demand to the PLO—the director of the Israeli Internal Security Service (Shin Bet), Yuval Diskin, responded to a question by Alaʾ Hlehel (the editor in chief of Fasl al-Maqal, a newspaper formerly published in Nazareth by the National Democratic Alliance [Balad Party]): “The Shin Bet security service will thwart the activity of any group or individual seeking to harm the Jewish and democratic character of the State of Israel, even if such activity is sanctioned by the law.”23 This communication was prompted by the 2006 publication of a series of documents known as “the vision documents,” drafted by groups of intellectuals and members of Palestinian civil society in Israel. The documents attempted to articulate a relationship between Palestinian citizens in Israel and the rest of the Palestinian people, on the one hand, and with the state whose citizenship they hold, on the other. In 2007, Adalah, the Legal Center for Arab Minority Rights in Israel, published another vision document titled “The Democratic Constitution.”24 Similarly, Mada al-Carmel, the Arab Center for Applied Social Research, published a vision document, titled The Haifa Declaration.25
In the wake of the release of these vision documents, Israeli security sources expressed concern over the “radicalization” of the “Arab public” and considered these efforts a “real strategic danger in the long term.”26 Ehud Olmert, the prime minister at the time, held a joint meeting with heads of security agencies to discuss this “radicalization.”27 On March 13, 2007, the newspaper Maariv wrote that security agencies were alerted by these vision documents, which were proliferating among the elites and of which there were already four. The source of concern was over the “common denominator that saw Israel as a state of all of its citizens, and not as a Jewish state.”28 By demanding full equal citizenship, the vision documents posed a formidable challenge to Zionist discourse and to the contradiction of a Jewish democratic state. Their significance lay firstly in their momentum—hundreds of activists rallied around the documents. Secondly, the documents signaled to the state that its Palestinian citizens were no longer a marginal minority, submissive as it was during the period of military rule.
The increase in the ’48 Palestinians' strength and self-organization coincided with internal transformations in Israel. The impact of these transformations lies in their decisive effectivity on the Zionist project's telos. The Zionist project began as a secular-nationalist colonial project, preoccupied with establishing a Jewish state on Palestinian land through colonial tools borrowed from the European colonial model; this project also attempted to endow this state with a “socialist-democratic character” for the Jews. This much was accomplished in 1948 by founding Israel on the ruins of Palestine. Still, this founding did not take place in what was taken to be the heart, or the central part, of the “Land of Israel.” With the end of the dominance of the founding Zionist generation, whose majority aligned itself with so-called socialist secular Ashkenazi Zionist tendencies, and the ascendance of right-wing settler forces, the Zionist project began to transform into one increasingly centered on the revitalization of the idea of the “Land of Israel” and in particular the territories of the West Bank, including East Jerusalem, as the main site of Zionist Jewish settlement. Put differently, the colonial project began in 1948 as a settlement process premised on the secularization of religious legends and the establishment of a Judeo-nationalist group identity that conscripted religion into an idea of a secular state. By contrast, the Zionist colonial project that started to be realized after the 1967 occupation desecularized Zionism's foundational legends,29 adhering instead to literal religious interpretations. The Nation-State Law emerged against the backdrop of these changes, displaying a dialectical relation between the internal transformations in Israel and transformations among Palestinians. The Nation-State Law also came to secure once and for all Israel's colonial relationship to its Palestinian citizens and to the Palestinian people as a whole.
The Nation-State Law affirms a hierarchical regime of citizenship and forecloses any possibility of a state of all its citizens. Not only does it definitively ostracize Palestinian citizens from citizenship, but it effectively transforms Palestinians into benefactors, even as they continue to be called citizens. Subsequently, the Palestinian becomes open to unbridled practices of subjugation, suppression, and racism. Without any future guarantee, all transgressions become validated. The razing to the ground of Al-Araqeeb in the Negev and the destruction of Khan al-Ahmar in the West Bank for the sake of constructing exclusive villages and Jewish settlements are the Jewish state's defining practices. The Palestinian is only a problem that must be removed, excised, or contained in accordance with parameters of Jewish superiority/supremacy.
The Nation-State Law also aspires to end the aspirations of the Palestinian people more generally. The law establishes the “Land of Israel,” that is, Palestine from river to the sea, as territory open to Jewish self-determination. All parts of Palestine are in principle a frontier for expansion, annexation, and the imposition of Israeli sovereignty. This is consistent with Netanyahu's ideology. In his first speech at Bar Ilan, he said, “The simple truth is that the root of the conflict has been—and remains—the refusal to recognize the right of the Jewish People to its own state in its historical homeland.”30 In another speech to the US Congress on May 24, 2011, he said: “The Jewish people are not foreign occupiers. We're not the British in India, or the Belgians in the Congo. This is the land of our forefathers.”31 Under this logic, Palestinians are the occupiers of the land, not its indigenous people, and Jews by definition cannot “occupy” their own homeland. Finally, the Nation-State Law seeks to settle the question of Palestinian refugees who were displaced from their land during the Nakba in 1948. Israel, as the nation-state of the Jewish people, will not accept the return of refugees due to its conflict with its national character.
The Nation-State Law was as much the product of these internal transformations and shifting dynamics within settler society as the result of the evolving relationship with the native Palestinians, who have themselves challenged the Jewish character of the state. The 1967 occupation and the consequences of the settler project's expansion into the newly occupied Palestinian territories contributed to the escalation of Israel's religio-nationalist messianic discourse. Control over occupied territories, the subjugation of Palestinians to military occupation, and the growth of settlement construction contributed to a gradual turn from a preoccupation with the identity of the Jew to a preoccupation with the structure of the Jewish nation-state. I have traced this shift from the initial writing of the state as Jewish and democratic into law to the state's alignment with Jewish nationalist right, the legitimation of settlements to a general public consensus, and the resulting increased Palestinian presence in Israel and the ultimate transformation of Palestinians into a politically and socially effective force. Henceforth, the paradoxical combination between universal democratic values and exclusive Jewish values revealed its impossibility and collapsed. The Nation-State Law came to foreclose any democratic possibility—even if theoretical—for Palestinian citizens; it also sanctioned the intensification of settlements throughout the Palestinian occupied territories and obstructed Palestinian institutions that would oppose the occupation or call for the expression of democratic values.
The Promised Land's boundaries have appeared in different formulations throughout the Torah. In the book of Genesis, the Promised Land's boundaries appear in the form of the Lord's covenant with Abraham: “To your descendants I give this land, from the Wadi[e] of Egypt to the great river, the Euphrates” (Gen. 15:18, New International Version). In the book of Exodus, the boundaries differ: “I will establish your borders from the Red Sea to the Mediterranean Sea, and from the desert to the Euphrates River. I will give into your hands the people who live in the land, and you will drive them out before you” (Exod. 23:31, NIV). In the book of Joshua the territories take another size: “I will give you every place where you set your foot, as I promised Moses. Your territory will extend from the desert to Lebanon, and from the great river, the Euphrates—all the Hittite country—to the Mediterranean Sea in the west” (Josh. 1:3–4, NIV). For more on the boundaries of the “Land of Israel” and the interpretations of the difference between the Promised Land and the land under control, see Ariʼel, “Borders.”
See Law of Return, 5710-1950, LSI 4 114 (1949–50) (Isr.); Nationality Law, 5712-1952, LSI 6 50 (1951–52) (Isr.); and Entry into Israel Law, 5712-1952, LSI 6 159 (1951–52) (Isr.). Unless otherwise noted, all laws are accessible in English and the original Hebrew on Adalah's Discriminatory Laws Database (DLD); see Adalah, “Discriminatory Laws in Israel.”
“Land swaps provided by the State of Israel could include both populated and unpopulated areas. The Triangle Communities consist of Kafr Qara, Arʾara, Baha al-Gharbiyye, Umm al Fahm, Qalansawe, Tayibe, Kafr Qasim, Tira, Kafr Bara, and Jaljulia. These communities, which largely self-identify as Palestinian, were originally designated to fall under Jordanian control during the negotiations of the Armistice Line of 1949 but ultimately were retained by Israel for military reasons that have since been mitigated. The Vision contemplates the possibility, subject to agreement of the parties that the borders of Israel will be redrawn such that the Triangle Communities become part of the State of Palestine. In this agreement, the civil rights of the residents of the triangle communities would be subject to the applicable laws and judicial rulings of the relevant authorities” (White House, Peace to Prosperity, 13).
See Hours of Work and Rest Law, 5711-1951, LSI 5 125, (1950–51) (Isr.); Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, LSI 7 139 (1952–53) (Isr.); State Education Law, 5713-1953, LSI 7 113, (1952–53) (Isr.); and Pig-Raising Prohibition Law, 5722-1962, LSI 16 39 (1961–62) (Isr.).
See Absentees' Property Law, 5710-1950, LSI 4 62 (1949–50) (Isr.); World Zionist Organization—Jewish Agency (Status) Law, 5713-1952, LSI 7 3 (1952–53) (Isr.); Land Acquisition (Validation of Acts and Compensation) Law, 5713-1953. LSI 7 43 (1952–53) (Isr.); and Basic Law: Israel Lands, 5720, LSI 14 48 (1960) (Isr.).
Absentees' Property Law, 5710-1950, LSI 4 62 (1949–50) (Isr.).
World Zionist Organization—Jewish Agency (Status) Law, 5713-1952, LSI 7 3 (1952–53) (Isr.).
Basic Law (The Knesset), 5718, LSI 12 85 (1957–58) (Isr.); §7a, Basic Law: The Knesset (Amendment No. 9), 5746, LSI 39 216 (1984–85) (Isr.).
See §2, Basic Law: Freedom of Occupation, SH 1454 (1994) 90 (Isr.). This law repealed and replaced another basic law by the same name, Basic Law: Freedom of Occupation, SH 1387 (1992) 60 (Isr.),mfa.gov.il/MFA/MFA-Archive/1994/Pages/Basic%20Law-%20Freedom%20of%20Occupation-.aspx.
See Basic Law: Human Dignity and Liberty, SH 1391 (1992), www.mfa.gov.il/mfa/mfa-archive/1992/pages/basic%20law-%20human%20dignity%20and%20liberty-.aspx.
Stern, “PMO to Balad.” See also the press release by Adalah, “AG Mazuz.”