Article
Contemporary Review
of the Middle East
1(1) 75–94
2014 SAGE Publications India
Private Limited
SAGE Publications
Los Angeles, London,
New Delhi, Singapore,
Washington DC
DOI: 10.1177/2347798913518462
http://cme.sagepub.com
Hybridity and Israel’s
Democratic Order:
The End of an
Imperfect Balance?
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Ayelet Harel-Shalev
Ilan Peleg
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Abstract
This article deals with the quality of Israel’s democracy from the perspective of
what it views as the fundamentally hybrid nature of the Israeli regime. From its
inception, Israel has been committed to two seemingly conflicting sets of values,
one universal (reflected in democratic institutions, practices and ideals) and the
other particularistic (reflected in national institutions benefitting a segment of
the Israeli population). This article examines the most recent trends in Israel’s
constitutional order, including its political culture and especially its legal developments, and their potential impact on the quality of the democratic order in the
country. It points out the threats for the existing, imperfect balance between
the traditional albeit contradicting commitments of the Israeli society, state and
regime, which might push the country toward a hegemonic order.
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Keywords
hybrid regime, Israel, Arab–Palestinians, democracy, deeply divided societies,
right wing
Scholarly writings about the Israeli case differ about the nature of the state.
Disagreements prevail on the right terminology to describe the Israeli regime, the
direction of political relations between the Jewish majority and the Arab minority,
the likely future of the country’s regime and more. Analysts have described Israel
in such greatly different terms as ‘liberal democracy’ (Yakobson & Rubinstein
2003), ‘ethnic democracy’ (Smooha 1996, 2002), ‘ethnocracy’ (Yiftachel 2001)
and ‘hegemonic regime/ethnic constitutional order’ (Peleg 2004, 2007). As to the
Ayelet Harel-Shalev is a Lecturer at the Conflict Management and Resolution Program
and Politics and Government Department, Ben-Gurion University Israel. Email: ayelet.harel.
shalev@gmail.com
Ilan Peleg is a Charles A. Dana Professor of Government and Law at Lafayette College,
Pennsylvania, US. Email: pelegi@lafayette.edu
The authors would like to thank the reviewers for their constructive remarks. The article
was finalised in May 2013.
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major political processes in society, Smooha suggests that Israel is, in fact, more
multicultural in practice than any of the EU countries, since it specifically
acknowledges the Arab–Palestinian minority as a cultural and linguistic minority
and provides them with a separate, state financed, compulsory educational system
in Arabic (2008, p. 12). Other scholars, with whom we disagree, present Israel as
an apartheid state that is involved with ethnic cleansing (Pappe 2006, 2011).
In addition, there are conflicting views regarding Israel’s legislation on immigration and citizenship. While Yakobson and Rubinstein (2003) think that Israel
is doing well and basically does not differ much from other democratic nation
states, other scholars, such as Medina and Saban (2009), Smooha (2008), Jamal
(2011), and Peled and Navot (2005) take a significantly more critical view of the
country. Looking at the Arab–Palestinian minority, while Rekhess presents a process of its radicalization (2002, 2007), Smooha identifies a process of politicization (1998, 2004). Normatively speaking, while there are scholars who claim that
Israel should stick to its self-definition as ‘Jewish and Democratic’ (Gavison
1998), other suggests that it should become a bi-national state (Ghanem 2009) or
alternatively strengthen its civic character, while maintaining its Jewish definition
(Peleg and Waxman 2011).
Despite those differences of opinion, most analysts agree that the Israeli regime
within the borders of the ‘green line’ (termed also as ‘Israel proper’) has been, in
essence, a hybrid, mixture or combination of different ideas and principles.
Smooha (1996) for instance, has suggested that the ‘ethnic democracy’ in Israel
involves civic rights and group rights that enable the state to practice what he
views as an ethnic democracy. Peled (1992) suggests that parallel citizenship
‘packages’ have been given to the majority and minority in Israel and Peled and
Shafir (1996) identify different citizenship discourses—liberal, ethnic and republican—in Israeli politics.1
While in general we accept most of these long-term characterizations of the
Israeli regime, in this article we focus primarily on the highly dynamic nature of
the country’s constitutional order at the present time. As the condition of the
Palestinian population in West Bank and in Gaza is beyond the scope of the current research, we will focus on the nature of the Israeli regime within ‘Israel
proper’ (pre-1967 borders). Our aim is to analyze the inherent tension between the
conflicting logics of democracy and citizenship, on the one hand and ethnicity and
nationhood, on the other hand. We examine the way in which the deeply divided
Israeli society attempts to reconcile these contradictory notions by defining itself
at once as both national (exclusive) and democratic (inclusive). In doing so, Israel
presents a quintessential hybrid regime, as it has done since independence. The
critical question to ask is whether Israel is capable of squaring the circle; create a
genuine democracy despite its ethno-national commitments. In assessing the quality of Israel’s Democracy, we argue that the imperfect balance between universal
liberalism and nationalist hegemony has now been seriously disturbed, brought
closer to the breaking point than ever before. In moving toward greater ethnicization, the country might have put in danger its long-term democratic character.
Contemporary Review of the Middle East, 1, 1 (2014): 75–94
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Hybridity and Israel’s Democratic Order
Governments of deeply divided societies with control over ethnically mixed
territories that opt to follow a democratic path can choose from at least three policies to sustain their regimes when faced with severe internal ethnic conflicts
(Harel-Shalev 2013):
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1. Preserve the state’s territorial unity, but sacrifice their ethnic character by
inserting civic/liberal or federal elements in order to include within the
state significant minorities. In the case of Israel, such policy would allow
the country, in effect, to ‘drift’ toward the so-called one-state solution, thus
creating a version of binationalism, either de facto or de jure.
2. Uphold and enhance the state’s national character and give up control of
some state territories inhabited by the minority. In the Israeli case, this was
the solution adopted by the second Rabin government, aiming at the twostate solution for Israel and a neighboring Palestinian state. It was also
suggested by ‘Yisrael Beiteinu’ Party headed by Lieberman, that Israel
should carry-out territorial and population transfers.2
3. Sustain both the national character and the territorial unity, with the possibility of being a less democratic state that actively curtails civil and/or
group rights to maintain its territorialist vision.
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Each strategy can be found in Israel’s recent political history.
Over the last several years, however, rightwing-ruled Israel has moved toward
the third option, trying to further enhance Israel’s national character as an exclusively Jewish state and its maximalist territorial integrity. The price of selecting
this ‘mixed option’—the fusion of ethno-nationalism and territorialist policies—
has caused, on the one hand, the infliction of serious harm on the rights of the
Arab Palestinian minority in Israel (not merely in the West Bank and Gaza); and
on the other hand, of low-level democracy in the country as a whole.3
In choosing the most appropriate solution for their societies, states and their
leaders are naturally affected by the demographic balance that they face (Dowty
1998). States in which the majority community consists of more than 84 per cent
of the population usually do not tend to establish power-sharing mechanisms,
reflecting the predominance of their majorities. In contrast, when the majority
constitutes less than 64 per cent, it often relies on power-sharing mechanisms. In
the case of Israel proper, the ‘demographic ratio’ between the state’s communities
might be characterized by ‘demographic prominence’, that is, the majority constitutes between 65 per cent and 84 per cet of the population. According to our previous observations (Peleg 1997, pp. 197–99), this is the ‘danger zone’ where most
severe ethnic conflicts occur.
The above classification, focusing narrowly on demographics, ought to be
broadened, expanded and applied to the general characteristic of the constitutional order adopted by deeply divided societies. In a different paper (Peleg and
Harel-Shalev 2012), we offer the following four possible options on a continuum
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Ayelet Harel-Shalev and Ilan Peleg
that spreads between complete equality between the constituent socio-political
groups and complete inequality between them:
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1. Binationalism or multinationalism is a constitutional order that establishes
complete equality between the major groups in a deeply divided society.
Belgium (binationalism) and Switzerland (multinationalism) might serve
as examples in today’s world. While this form of regime might maximize
equality, it might not be politically achievable, might nor enhance ‘governability’ (Belgium as an example), or might not be particular stable.
2. Power-Sharing or Power-Division is a constitutional order that, while
rejecting the principle of full ethno-national equality (accepted by
binationalism or multinationalism), promotes the idea that the state belongs
to all major groups in society. There are numerous institutional mechanism
to share power or divide it—consociationalism in its different formulas
(Lijphart 1985) as applied in Northern Ireland, federalism (Canada), territorial (Spain) or a-territorial autonomy and even cantonization (as in the
Swiss case). Whatever the precise order, in each of these cases and formats,
the majority agrees to divide or share power with the minority, and arrives
at the solution via dialogical politics rather than ethno-national ‘diktat’.
3. Ethnic Democracy is a regime type in which there are equal rights for all
individual citizens in a society, regardless of their ethnic descent or membership, but different group rights for the majority and the minority as
ethno-national groups. In such an order, the state itself is identified, openly
and publicly, with the dominant ethno-national group. This model was initially suggested by Sammy Smooha as an analytical way of understanding
the Israeli democracy, but was also applied to other cases in central and
east Europe.
4. Majoritarianism is a constitutional order in which the dominant ethnonational group decides on all public issues, with no regard or minimal regard
to the interests, demands or positions of the minority. Majoritarian attitude
is likely to lead to at least what has been characterized as ‘ethnic democracy’
(Smooha 2002), an inherently flawed democracy (Peleg 2004) and so forth.
5. Hegemony is a constitutional order in which the dominant ethno-national
group pushes ‘Majoritarianism’ to its outer limits by negating numerous of
the minority rights in practically all spheres of public life. This situation
has been described by us (Peleg 2007) and others (Yiftachel 2006) in the
past. It has been applied in countries such as Iraq, South Africa, Northern
Ireland, Spain and Sri Lanka with devastating effects for the targeted
ethno-national groups, but also to individuals and groups opposed to the
hegemonic order on moral, legal or other grounds.
This general theoretical perspective is applicable to Israel of 2013. First, it is
clear that Israel since 1948 has established, in fact if not in theory, a hybrid regime,
mixing individual civic rights—most (although not all) of the traditional Western
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Hybridity and Israel’s Democratic Order
Table 1. Constitutional Orders Adopted by Deeply Divided Societies
Binationalism Power- Ethnic
Sharing Democracy
Majoritarianism
Hegemony
Multinationalism
Source: Peleg & Harel-Shalev 2013.
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freedoms—and some group rights, although not on an equal basis.4 Second, for
the most part Israel had adopted the Majoritarian Model in regard to all crucial
issues—citizenship and immigration, land control, culture and symbols etc.
Thirdly, in Israel during the last decade or so there has been a serious push to
move beyond Majoritarianism and toward Hegemony and that this process is
likely to continue in years to come.
The rest of this article will be dedicated to several tasks: (i) an examination,
both theoretically and empirically, of the hybrid nature of the Israeli regime,
(ii) demonstrating the Majoritarian character of the Israeli constitutional order,
and (iii) analysis of the direction in which the regime has turned to during the past
decade.
The State of Israel was established in mid-1948 following the termination of
the British Mandate, in the midst of an Arab-Jewish violent struggle for control
of the land and eventually a war between Israel and the neighboring Arab states.
The vast majority of Arab-Palestinians left Israel, some of them expelled by Jewish
forces (Morris 2004). Roughly 150,000 Palestinian Arabs remained in what became
post-1949 Israel. For many of them, the establishment of Israel considered as their
own ‘disaster’ (al-Nakba in Arabic). From the very beginning, the Jewish majority
and the Arab minority—the remnants of the Arab community in mandatory
Palestine—were on two sides of a huge political divide. Many Jews have identified
the Arabs as a disloyal minority, a ‘fifth column’, and a ‘security problem’. The
Arabs, on their side, identified the new Jewish state as their dispossessor, the illegitimate ruler of their land.5
Despite those inauspicious, unpromising beginning, the State of Israel began
by establishing a seemingly hybrid constitutional order. Lacking a written constitution, Israel’s Proclamation of Independence stated that the new state ‘will foster
the development of the country for the benefit of all its inhabitants; it will be
based on freedom, justice and peace’. It promised ‘complete equality of social and
political rights to all its inhabitants irrespective of religion, race or sex’, and
appealed to the Arab inhabitants of the State of Israel to ‘preserve the peace and
participate in the up-building of the State on the basis of full and equal citizenship
and due representation in all its provisional and permanent institutions’. Side by
side with these commitments to what might be called ‘universal principles’ of
democracy and equality, the Declaration was also a particularistic document committing the State to the national ideas of Zionism and the Jewish nation. No significant disagreements have arisen over the text of the Declaration among the
People’s Council (Moetzet Ha’am). Nonetheless, the People’s Council and then
the Israeli government treated the State of Israel as an irrevocably Jewish state.
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The distinction between the two communities in Israel has been reflected at
the most basic level of citizenship. The Law of Return (1950) determined that an
affiliation with the Jewish collective was sufficient grounds for immediately
receiving Israeli citizenship. This law defined the state of the state as ‘the state of
the Jews’, both of citizens of the state and emphasized the link of the state with
the Jews in the Diaspora.6 Many essential laws of the State of Israel, in addition
to the Law of Return and the Law of Citizenship, have ensured the ‘Jewishness’
of the state and have helped in maintaining and enhancing both the demographic
Jewish majority and the political Jewish control in the land.
At a relatively late stage, the 1990s, two ‘basic laws’ were passed; emphasizing
that Israel is a ‘Jewish and democratic’ state. This formula, incorporating hybridity into the very definition of the state, has now been enshrined in the country’s
constitutional order (Peleg 2003). Countervailing pressures to liberalize Israel,
reflected in the rulings of the Supreme Court and the declaration of a ‘constitutional revolution’ were held at bay by the insistence of many to describe the state
as ‘Jewish’. Above all, Israel’s land policy demonstrates that it sees itself as a
Jewish state. In the state’s first few decades, there was only a ‘taking away’ of
lands as those lands owned or held by Arabs were confiscated. Over the last few
decades, the more passive practice of ‘non-allocation’ of lands to Arabs has
become the common practice and only in recent years have limits been set on a
non-allocation policy. Additionally, Israeli symbols have always been exclusively
Jewish, rooted in either Judaism as a religion or in the political history of Zionism
and Israeli-Jewish majority.
Despite these ethno-national characteristics of Israel’s political culture, alongwith social and political civic rights, the Arab minority was granted several
important collective rights (Saban 2004). Those included a formal, though unimplemented, status for Arabic as an official language; a separate, although not independent Arabic education system; a separate system of matrimony laws for the
different religious sectors and the legal right to separate courts, limited by Jewish
government control over funding and the appointment of Kadis; and practical, discretionary exemption from military service for Arabs (excluding Druze and
Circassian men). The Israeli Supreme Court issued through the years several rulings on equality in the purchasing of lands, governmental allocation of funds,
appointment to the civil service and so forth. At this stage we should not yet regard
these civil rights as de facto, as these principles have not yet been fully implemented. Numerous authors (Barzilai 2003; Ghanem 1998; Ghanem, Rouhana and
Yiftachel 2008; Harel-Shalev 2010; Lustick 1990; Peled 2007; Peleg 2007; Saban
2004), have established through the years the existence of pervasive discrimination
of members of the Arab minority as individuals and as a group. Many official
Israeli organizations have agreed (for example, the Or Commission), as have many
NGOs (ACRI, Adalah, Mossawa, Sikkuy).
The Arab-Palestinian minority in Israel shares the Palestinian nationality with
Palestinians in the Occupied Territories and beyond. This minority also carries
Israeli citizenship. It has special features that distinguish it from both the rest of
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the Palestinian people and from the majority Jewish community in Israel. Most
Palestinians in Israel admit they feel connected to the state of Israel (Sikkuy report
2011); yet, they are a unique, distinct and, above all, a homeland minority
(Jamal 2008).
A review of Israeli history reveals that the country has been committed to two
sets of values that exist in constant tension with each other, particularly within the
context of the long-time Israeli-Palestinian conflict. On the one hand there is a
commitment to democratic order, including such values as equality before the law
and even the recognition of minority rights. On the other hand, there is a strong
commitment on the part of most Israeli Jews to the ethno-national ‘mission’ of the
state, Zionism, a commitment that views the State as belonging, above all, not
merely to Israeli Jews but to all Jews. This hybridity has been evident in Israel
from the very early history of the State; it has been enhanced through the years.
The troubled, conflictual majority–minority relations among the citizens of
Israel, has been affected dramatically by the hybrid nature of the State. Peled and
Navot (2005), and more recently Peleg and Waxman (2011), have described in
great details the changing patterns of relations between the two groups, especially
over the last dozen years or so.
Recent developments suggest that the careful balance that evolved between
Israel as a ‘democracy’ and Israel as a ‘Jewish Republic’ through the earlier years
of the state has been allowed to seriously deteriorate. Several important processes
have contributed to this significant deterioration: (a) the failure of the Oslo process (2000–2001) and the decline of progress toward the resolution of the IsraeliPalestinian conflict; (b) the break of second intifada and the large-scale 2000
demonstrations by Israeli Arabs; (c) a right-wing dominated nationalist governments in Israel since 2001; and accordingly (d) the decline of both the traditional
Left and the liberal center in Israel; and (e) the rise and politicization of religious
circles; (f) the rise in the number of non-Jewish temporary migrant workers, that
heightens the Jewish/non-Jewish cleavage, deepening the Arab–Jewish divide
(Harel-Shalev and Kook 2011).
An examination of the constitutional and legal context reveals that there has
been a marked increase in anti-pluralistic acts proposed, and sometimes adopted by
the Knesset, Israel’s parliament. Much of this legislation has been promoted by
right wing political parties; although parliamentarians from the centrist parties
joined them on some occasions (Harel-Shalev and Kook 2011). While the designation of right–left in the Israeli political map since 1967 has traditionally been
applied almost exclusively to positions regarding settlement activity and territorial
expansion (that is, positions taken on the Israeli-Palestinian conflict), recent developments in the Israeli political map have given rise to new parties that are comparable to the right wing, nationalist parties in Europe (for example HaBayit HaYehudi,
Tkuma, Yisrael Beiteinu). The rise of the New Right in Israel is central to our thesis
in regard to possibility of fundamental change in the character of the Israeli regime.
Several examples of major legislative and constitutional developments demonstrate our theoretical argument in an empirical fashion. In their totality, these
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legislations, if realized, might cause (serious) decline in the quality of Israel’s fragile democracy. The new, illiberal laws that were passed or initiated recently in
Israel fall into five categories: (i) Anti-minority; (ii) Anti-supreme-court; (iii) Antileft wing; and (iv) Anti-non-Jewish immigrants and (v) anti-liberal in general.7 It is
important to note that those are not neat categories; sometimes they overlap. In the
current article, we have chosen to focus primarily on anti-minority legislation,
though we wish to emphasize the new anti-pluralist spirit reflected in all or most of
these legislative initiatives. We will start with laws that affect the nature of the Israeli
citizenship directly, and then move to address other spheres of rights restrictions.8
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2003 Amendment to the Citizenship Law
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As discussed above, the central constitutional expression of Israel’s Jewish identity is based in the Law of Return (1950) and the Citizenship Law (1952). These
foundational laws link Jewish identity and Israeli citizenship, introducing a distinction between the rights of the country’s Jewish and non-Jewish inhabitants. It
incorporates a discriminatory and differentiating dimension to citizenship. By virtue of its recognizing that any Jew has the right to immigrate to Israel, the Law of
Return bestows a superior legal status, relative to Israel’s non-Jewish citizens,
upon Jews who are not citizens of the State.
Despite the constitutional and legal contradiction that emerges, judicial institutions in Israel have determined that the principle of equality has not been
materially compromised by these laws since it is commonly accepted that the
State constitutionally entitled to regulate the composition and character of its
own population. Indeed, the Israeli Supreme Court has ruled on several occasions that there is no contradiction between the Law of Return and the principle
of equality in Israeli democracy. As presented by Aharon Barak in the Ka’adan
verdict:
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Since the State’s establishment, it has treated its citizens equally. The State of Israel
is a Jewish state in which minorities live, among them the Arab minority. Each of the
minorities living in Israel enjoys absolute equality. It is true that a special key to enter
the house was given to the Jewish people (see the Law of Return), although should
a person be a citizen according to law, he enjoys equal rights just like all the other
members of the household…therefore there is no contradiction between the values of
the State of Israel as a Jewish and democratic state and absolute equality among all
its citizens. On the contrary: the equality of rights existing among all people in Israel,
regardless of their religion and regardless of their nationality—derives from the values of the State of Israel as a Jewish and democratic state.
H.C. (1995) 6689/95 Ka’adan vs. The Israel Lands Administration, 54(1) P.D. 282.
This delicate understanding received a serious challenge with the proposed
amendment to the Citizenship Law (1952), which was placed on the agenda
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in 2003 and generated debate about limiting the granting of citizenship to a
man/woman from the occupied territories who marries an Israeli citizen. The
debate began after a Palestinian with Israeli citizenship, whose mother was
an Israeli citizen, committed suicide bombing in 2002. Exploiting the privileges granted to him by citizenship, the perpetrator used Israeli license plates
and an Israeli identity card in his mission to blow up the Matza restaurant
in Haifa, which had been a symbol of co-existence between Jews and Arabs
in Israel.
As a result, the Knesset responded by adopting an amendment to Israel’s citizenship law, banning Palestinians residing in the occupied territories from entering the country for the purpose of residence and naturalization, even in the
context of family unification with (usually Arab) Israeli citizen.9 Further amendments to the law made in 2007 also prohibit spouses from a number of ‘enemy
states’, (defined and listed in the law as Syria, Lebanon, Iran and Iraq, as well as
from the Palestinian Authority) to receive citizenship in order to live together in
Israel with their spouses, but added some provisions liberalizing the guidelines
regarding age and other qualifying aspects in 2005.10 It is important to emphasize
that the law discriminates against Israeli citizens who marry Arabs and
Palestinians, in contrast to other Israelis who marry non-citizens of any other
nationality. Since nearly all the Israelis who marry Palestinians are ArabPalestinians, the law discriminates against this sector on the basis of nationality
(Peled 2007).
The Israeli Supreme Court decided (in a 6:5 vote) to uphold the constitutionality of the Citizenship and Entry into Israel Law (as amended in 2007) after lengthy
deliberation and disagreement.10 The majority justices recognize that there is a
constitutional right to family life, which derives from the right to human dignity,
but ruled that this right does not extend to necessarily being exercised within
Israel. This argument was based in part on the European Court of Human Rights
precedent that determined that states are not required to grant the right to family
life within their borders. It was also ruled that if there is a violation of constitutional rights, including the right to equality, then this is a violation that meets the
requirements of the limitation clause.
Oath of Allegiance (Proposed)
The demand for an oath of allegiance has come up numerous times over the past
few years. Specific legislation was finally proposed by Yisrael Beiteinu party
leader and the then Minister of Foreign Affairs Lieberman. The proposal suggested an amendment to the Citizenship Law (1952), according to which a person
who does not pledge allegiance to the Jewish state ‘shall lose his right to vote and
be elected’. Earlier, in its election campaign, Yisrael Beiteinu promised ‘to act to
define a closer link between military service or national service and the rights
granted by the National Insurance Institute, in the spirit of the clear principle that
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whoever is more loyal receives more’ (Israel Beiteinu Party platform 2009; Saban
2008). While the government refrained from demanding the curtailing of the
rights of current citizens who fail to take the oath, it did adopt the suggestion of
demanding an oath of allegiance from new citizens. In October 2010, an amendment to the citizenship law was passed that states that every non-Jew who applies
for Israeli citizenship must declare that he/she is loyal to the Jewish and Democratic
Israeli State.
While the legislating of an oath of allegiance was aimed explicitly at the
Palestinian Arab minority, it nonetheless reflects the general worldview that sees
the identity of Israel as a Jewish state being threatened by the growing presence of
foreigners and non-Jews. As with the amendment to the citizenship law mentioned above, this legislation reflects the growing perception of dual threat—both
to security and to identity.
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Revoking Citizenship for Persons Convicted
of Terrorism or Espionage
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Initiated by MK David Rotem, the law authorizes the Minister of Interior and the
courts to revoke citizenship of persons convicted of terrorism, espionage, or disloyalty. When citizenship is denied, a series of basic rights that follow from it are
denied too. The bill was approved by the Knesset Interior Committee with two
amendments: First, that it will not be permissible to leave a person state-less.
Second, that the decision to revoke citizenship will require the approval of the
Attorney-General. Israel’s General Security Services have expressed opposition
to this bill. Regardless the fact that Israel’s criminal law already includes legal
tools for dealing with persons convicted of terrorism or espionage, the law has
passed final reading on 28 March 2011.
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‘Selection Committees’—Acceptance to Communities Law
Despite the existence of freedom of mobility and residence, Israeli geographic
space is mostly partitioned between Arabs and Jews. Arab citizens live largely in
Arab cities and villages, with a minority in three mixed cities. The major urban
centers in Israel have less than five per cent of Arab residents. The strict separation between Arabs and Jews in this sense reflects both the historical policy of
anti-integration, as well as the fact that the control of land lies at the heart of the
conflict between Jews and Arabs in Israel. From a historical perspective, Jewish
settlement was the main factor that impacted the social ‘partitioning of space’ in
the country. Furthermore, settlement and ‘integration of the exiles’ are among the
State’s cornerstones (Kedar 2003). The implementation of these principles was
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articulated in the takeover of most of the land in the State, ‘making room’ for the
masses of immigrants who arrived.
If in the past state land was by and large transferred to Jews, as of the year
2000, governmental and legal principles in this area changed significantly.
Although in numerous cases the State categorically refused to accept land-related
claims made by Arab-Palestinian citizens, the exceptional case of the Ka’adan
family (in Katzir) is particularly relevant to this discussion and constitutes a
material change. Acute housing problems in the Arab sector drove a small proportion of this population to reside in Jewish towns. Seeking a better quality of
life, the Ka’adan family, were among a group of Arab couples interested in moving to the Jewish town of Katzir and building a home there. Following the opposition voiced by Katzir residents, the Israel Lands Administration and the Jewish
Agency, the Ka’adans petitioned in the Supreme Court. The March 2000 judgment stipulated that the State’s definition as Jewish is not justification for discriminating against Arabs and the State of Israel cannot deny its obligations by
discriminating against non-Jews through a third party (the Jewish Agency)
(Jabareen 2002).
In order to bypass this somewhat revolutionary verdict, many Jewish communities have opted for a more ‘diplomatic’ barrier by establishing ‘selection
committees’. Nine years after the Ka’adan verdict, in March 2011, the Knesset
voted in favor of a law amendment stating that every new small village is entitled
to compel all candidates who wish to buy land/property in the village to go
through a selection process. According to this law, acceptance committees to villages and communities may turn down a candidate if the committee decides he
or she ‘fails to meet the fundamental views of the community’, its social fabric
and so on. The bill might be used to deny ethnic minorities’ access to Jewish
communities set up on predominantly public lands.12 The amended version of the
law limits the application of the law to the Negev and Galilee regions alone; and
to communities of up to 400 family units (instead of 500 units in the original
version). A petition was filed at the Supreme Court to cancel the law and is
pending.13
The Boycott Law
This law, officially titled ‘Preventing Harm to the State of Israel by Means of
Boycott’, enables the filing of civil lawsuits against individuals who call for boycott of settlement (in the West Bank and Gaza) products. The law also includes
several sanctions that would primarily hurt NGOs or companies participating in a
boycott: the loss of the NGOs’ ‘public institution’ status and with it the tax-exempt
status of donations made to these organizations, as well as the cancellation of
benefits to companies or ventures participating in a boycott.
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Anyone initiating, promoting, or publishing material that could serve as an
informational basis for a boycott against Israeli products or interests would be
guilty of a criminal and a civil offense. The offender would be liable for damages
and would have to recompense parties injured by the boycott, as well as being
subject to punitive damages of NIS30,000 without proof of damage. In the
explanatory notes to the bill, the sponsors declared that they would seek to expand
the scope of the legislation and reintroduce the criminal offense provision into the
text of the law. On 27 June 2011, the bill was debated in the Knesset’s Constitution,
Law and Justice Committee in preparation for its second-third reading. Bill
sponsors and supporters added a new section containing a series of sanctions
that would primarily hurt NGOs or companies participating in a boycott: the loss
of the NGOs’ ‘public institution’ status and with it the tax-exempt status of
donations made to these organizations, as well as the cancellation of benefits to
companies or ventures participating in a boycott—benefits established by law
encouraging capital investment in companies, support for R&D and statesponsored loan guarantees. For example, a business publicly declaring that it
would not buy supplies manufactured in the territories would be subject to lose
its state-sponsored benefits. The law has passed final reading on 11 July 2011.
A petition was filed at the Israeli Supreme Court in March 2012 on behalf of leading human rights organizations and Israeli and Palestinian groups affected by the
law seeking its cancellation. In December 2012 the Supreme Court issued an
order italicize against the law and ordered the state to explain why the law should
not be cancelled.14
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According to the original version of this bill, persons publicly commemorating
the Nakba Day as a day of mourning shall be sentenced and sent to prison (Peleg &
Waxman 2011: 127–28). The government endorsed the bill, but in the wake of
public protest an amended version was presented. The amended version does not
target individuals, but rather municipalities, organizations and public institutions.
Officially titled ‘Budget Foundations Law (Amendment 40)—Reducing Budget
or Support for Activity Contrary to the Principles of the State’, this law authorizes
the Minister of Finance to relinquish monetary support if the body or institution
has made any payment toward an event or action that undermines the ‘existence
of Israel as a Jewish and democratic state’, violates the symbols of the State, or
marks the date of Israel’s establishment ‘as a day of mourning’. The law has
passed final reading on 22 March 2011. On 4 May 2011, a petition against the law
was filed at the Supreme Court, requesting that it find the Nakba Law unconstitutional. The Supreme Court rejected the petition in January 2012, ruling that the
case was premature as the law had not been used against any specific
institution.15
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Foreign Entity Funding Law
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Officially titled ‘Law on Disclosure Requirements for Recipients of Support from
a Foreign State Entity’; was proposed by MK Ze’ev Elkin et al. According to the
final version of this law, NGOs supported by foreign state entities will be required
to submit financial reports every quarter (that is, four times a year instead of an
annual report) and if an advertising campaign is funded by a foreign state entity it
must be stated within the framework of this campaign. Despite claims made by
the promoters of this law, as though it is intended to increase transparency—in
practice its purpose is to delegitimize and curtail the activities of organizations
that receive funds from foreign entities.
Though the Israeli law already makes reporting such donations obligatory, this
law expands the existing requirements and limits the possibility of receiving funds
from non-Israeli organization. Its purpose is to harm human rights NGOs, as these
restrictions may discourage foreign government funding. The law specifically
exempts the World Zionist Organization, the Jewish Agency for Israel, the United
Israel Appeal, the Jewish National Fund and their subsidiary corporations from its
provisions. Thus the bill is inherently discriminatory. The law passed final reading
on 21 February 2011.
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Basic Law: Israel the Nation-State
of the Jewish People Proposed
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Tabled on 3 August 2011, a bill that seeks to define Israel as ‘the national home of
the Jewish people’—legally subordinating the state’s democratic character to its
Jewish one as defined in this proposed bill. The bill further stipulates that Arabic will
no longer be an official language of the state (rather a ‘special status’ language), and
that Hebrew Law shall serve as a source of inspiration for the legislator. The proposal
is aimed at strengthening Israel’s national and cultural identity as a Jewish state, and
emphasizing Israel’s identity as a nation-state rather than a bi-national or multicultural state. The status of the non-Jewish citizens is therefore even more marginalized than before. The proposal, however, has not yet been forwarded to final reading.
The anti-pluralist atmosphere does not remain merely in the Knesset. During
July 2010, dozens of municipal rabbis signed a manifest ordering a halachic ban
on selling or renting land and apartments in Israel to non-Jews.16 The government
was not determent enough to condemn this move. Many more law proposals were
initiated during the recent period, some of which were rejected by international
reaction, and some of which in the initial process of legislation. These processes
and many similar ones have changed the complexion of contemporary Israeli
politics. The discourse aimed at strengthening an exclusive Jewish ethno-national
identity which has diminished the liberal democratic factor, curtailing minority
rights. The political implications have been far-reaching. This process has given
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the right wing more power. Furthermore, ideas that were acceptable by the extreme
right wing in the past, have become an acceptable component of both left and
right wing political ideology. And among the supporters in the new law we can
trace many politicians, belong to the center (Harel-Shalev and Kook 2011). Israel
has therefore moved toward even stronger majoritarianism that characterized it in
the past and the increasing hegemonic nature of its politics threatens to push it
even further to the right.
Among the factors that drive Israeli politics to the ‘right’, we can trace not
merely security challenges and ethnic conflicts, but also political streams that
their political culture encourages a firm policy against all foreigners and nonnationalist factors. Some of the immigrants from the former Soviet Union, tend to
prefer right wing agenda; ‘religious’ actor, also, prefer non-liberal approaches;
among them we might find circles who don’t have any sensitivity to the modern
discourse of human and civil rights. In addition, we can trace ‘secular nationalists’, for whom the Nation is superior to all, and is much more important to them
than the freedom of speech or civic rights.
On a positive note, rather new survey findings indicate that there is room for
some optimism. If we move from the Knesset and the elite to the public, Israeli
NGO of both Jews and Palestinian citizens of Israel named Sikkuy (A Chance),
has published recently a report based on a recent national survey among Jews and
Arabs—citizens of Israel (Sikkuy 2011). In a nut shell, the findings indicate that
a clear majority of the Jews acknowledge the fact that Arab citizens suffer some
degree of discrimination, and many of them expressed empathy for their situation.
Moreover, 60 per cent of the Jews believe that promoting the equality of Arab citizens is in the interest of the country. The inequality of Arab citizens disturbs over
half of the Jewish population in Israel and almost 40 per cent of the Jews declare
a willingness to pay a personal price in order to reduce the gaps. A broad support
was found for integrating Arab citizens. Among Arab citizens there is sweeping
support for economic, political and social integration. Among Jews the numbers
are lower, mainly in the political sphere, and still, the majority supports integration of the minority. Nevertheless, both communities prefer to continue to live
separately.
When we move from practical policies and inequality recognition, to symbols,
it seems that the gap is indeed wider. The Jewish citizens expect the Arab citizens
to accept their situation as a minority within a nation state and refrain from
attempting to achieve full equality on the national and symbolic level. As far as
the minority is concerned—a large majority of Arab citizens of Israel believe that
without a change in this basic principle, or the basic definition of the state as
Jewish and democratic, true equality will not be possible. The recent trend of the
anti-pluralist legislation does not open dialogue, nor promote equality—the other
way around.
Our study has presented a sample of anti-pluralist legislative proposals in
contemporary Israel. It is important to mention that virtually all these laws and
proposed laws have been vociferously opposed in the press and other public
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forums, especially human rights NGOs. In some cases, the discussion of these
initiatives has led to dropping them from consideration or adoption. In other cases,
the legislation was changed by the courts. It is an ongoing political battle between
particulars and universalists in Israel.
Conclusions
After the elections of 2013, two important commentators offer the following
opinion:
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The recent Israeli elections indicate a change in direction. Against the backdrop of
a pervasive sense that the conflict is currently unresolvable—a tragedy in its own
right—a new coalition has been formed whose members disagree on foreign policy
and defense but come together around a common civic agenda that includes matters
of identity. Unlike fundamentalist groups which would have Israel choose between its
Jewish essence and democratic character, the new Knesset shows signs of favoring a
complex integration of the universal-democratic aspects of Israel’s national identity
with its particularistic-Jewish facets. (Stern and Ruderman 2013)
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In assessing the consequences of the January 2013 elections, we tend to take a
more cautious approach. While the elections open up the possibility for liberalization in Israel, this possibility is by no means guaranteed. Several analysts (Ghanem
1998; Peled 2007; Peleg and Waxman 2011; Yiftachel 2006) have warned in the
past that Israel could move toward increasing ethnicization or greater majority
hegemony, despite its credentials as fundamentally a democratic society. The
decline in the prospects of fundamental resolution of the Israeli-Palestinian conflict, the demographic trends in favor of the religious and secular/Nationalist
Right, the ability of politicians to use the ethno-national split, and so forth, have
pushed the Israeli public to the right. This trend might eventually change the
nature of the Israeli regime. Nevertheless, the recent election outcome might suggest that Israel is moving in a different direction.
A close look at the theoretical continuum offered above indicates that Israel’s
hybrid regime, an imperfect as might have been, may evolve to complete hegemony, pushing majoritarianism to its extreme. If the recent movement to the right
continues unabated, it will result in the complete erosion of the traditional hybridity adopted by Israel’s founding fathers. The liberal forces in Israel might be too
weak to stop this movement. History has shown that the erosion of hybridity is
extremely dangerous for the quality of a country’s democracy. In the case of
deeply divided Sri Lanka and formerly united Cyprus, hybrid regimes have taken
the wrong turn, leading to severe and violent conflict (Harel-Shalev 2010).
It seems that Israel is facing three great challenges: (i) solving the long IsraeliPalestinian conflict and ending the occupation; this conflict affects dramatically
the lives of both Palestinians and Israelis inside Israel itself; (ii) developing a
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Ayelet Harel-Shalev and Ilan Peleg
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more inclusive democracy that can better balance the interests of the Jewish
majority and the Arab-Palestinian minority and broaden the rights of the minority
in the country; (iii) Creating a system in which group right for minorities, such as
of the orthodox community for instance, would not harm the sensitive balance
between the principles of minority culture, women rights and equality.
Interestingly enough, even the former head of the Israeli Security Agency
(Shin Bet) admitted that inclusion of the Arab-Palestinian minority in Israel’s
civic life, is much more important and pressing than security concerns (Quoted in
Cohen 2012). During the last decade Israel has been moving toward greater
hegemony. Time will tell whether the new coalition, emerging after the 2013 elections, will bring about change toward greater equality and greater attention to
human rights of and equality among all Israeli citizens, along with an agreement
with the Palestinian Authority.
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1. The 1967 War, the most significant since that in 1948, witnessed the conquering by
Israel of the remaining parts of the Land of Israel/Mandatory Palestine (the West
Bank, East Jerusalem and the Gaza Strip) as well as of the Golan Heights from
Syria and the Sinai Peninsula from Egypt. The 1979 peace treaty between Israel
and Egypt resulted in Israel’s retreat from the Sinai, and in 1994 Israel signed a
peace treaty with Jordan. Although Israel withdrew from the Gaza Strip in 2005,
evacuating 8,000 Israeli settlers in the process, approximately 400,000 Jewish Israeli
citizens—almost 7 per cent of Israel’s general population—continue to reside beyond
the Green Line in settlements throughout the West Bank. The ‘disengagement’ from
Gaza, accompanied by great internal tension, did not mitigate the conflict with the
Palestinians. And in elections to the Palestinian Authority that followed in 2006, the
militant Hamas movement won a majority. A state of war punctuated with fragile
cease-fires characterizes current relations between Israel and the Hamas-run Gaza
Strip. All of these occurrences obviously affect inter-communal relationships—
between Jewish and Palestinian-Arab citizens of Israel—within Israel’s pre-1967
borders.
2. To read more about the significance of this proposal, see Saban 2008.
3. The ‘Territorial Imperative’ is a societal and often ideological drive for maximal
geographical expansion of the State. The ‘Ethnic Imperative’ is a drive for maximal
ethnic separation from other ethnic or national groups or for the purification of the
nation from those elements considered ethnically foreign to it. To read more about
the territorialist vs. the ethnic vision, see Barzilai and Peleg (2004, pp. 61–62). The
rather new trend in Israeli politics is moving toward promoting both ‘imperatives’—it
strives to more ‘ethnicization’ and more ‘territory’. This is, we argue, a recipe for
less democracy. In the current article, we focus on the attitude of the state toward the
Palestinian minority, citizens of Israel, rather than on the relation of State of Israel and
the Palestinians in the West Bank and Gaza.
4. Collective rights or group rights, unlike civil rights, are conferred on certain citizens
because they belong to a particular cultural or ethnic group—namely, these are rights
that stem from the group’s distinctiveness. For more details, see Harel-Shalev (2010,
pp. 5–6).
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5. From 1948–1966, most Palestinians in Israel lived under a military administration,
applied only to them, despite the fact that they were declared citizens of the state
in 1948. Military rule severely restricted their fundamental civil liberties, including
freedom of movement, speech and association.
6. In addition to the Law of Return 1950, there are three other means of acquiring
citizenship: birth, residence and naturalization. An individual born to an Israeli citizen
has Israeli citizenship regardless of whether or not he or she was born in the state of
Israel. Citizenship may also be granted by right of residence to Palestinian citizens
of the former British Mandatory Palestine, who chose to remain in Israel between
1948 when the state of Israel was established and the enactment of the Citizenship
Law–1952, provided that they were registered inhabitants on 1 March 1952 and were
living in or present in Israel or future Israeli territory upon entry into force of the
law. An amendment in 1980 facilitated further means of acquiring citizenship by
right of residence, extending citizenship to Arab descendants of former Palestinian
citizens who did not remain in Israel during this four-year period but who returned
subsequently to Israel and who had previously been entitled only to permanent resident
status. Citizenship by naturalization is subject to the discretion of the Minister of the
Interior and applicants must meet specific residency requirements and renounce their
former nationality.
7. Two main governmental initiatives against ‘foreigners’ are (a) Law to Prevent
Infiltration, and (b) Entry into Israel Law—(Amendment 21). The first, is an
amendment to the existing Law to Prevent Infiltration, stipulates that asylum seekers
and refugees, as well as their children, who enter Israel through the border with Egypt,
could be imprisoned, without trial, for a minimum of three years and in some cases—
indefinitely. Its purpose is to deter refugees from entering Israel. The law disregards
Israel’s basic commitments as a member of the community of nations and as a signatory
to the Convention Relating to the Status of Refugees. The law passed final reading on
10 January 2012. The latter, the 21st Amendment to the Entry into Israel Law—sets
limitations on work permits given to migrant workers residing in Israel. It restores the
measure by which migrant workers are bound to a single employer, an arrangement
deemed illegal by the Supreme Court. The law passed final reading on 16 May 2011.
8. A full list can be found at the website of the Association for civil rights in Israel,
http://www.acri.org.il/en/2012/02/05/update-anti-democratic-legislation-initiatives,
accessed 13 February 2013.
9. Citizenship and Entry into Israel (Temporary Order) Law, 2003, S.H. 544. For more
details read Barak-Erez (2008) and Carmi (2007).
10. Although the law was originally enacted as a temporary order, its validity has been
repeatedly extended by the Knesset making it in effect a permanent law. Exception to
the ban were introduced in 2005, allowing the Interior Ministry to grant citizenship to
males over 35, females over 25, special medical or work-related cases, and children
under14 for the purpose of living with their Israel parents.
11. HCJ 466/07, MK Zahava Galon v. The Attorney General, et al. [2012]; following HCJ
7052/03 Adalah et al. v. Minister of Interior [2006].
12. But it can also exclude other communities or individuals as well, as single parents,
individuals with disabilities and so on. See for example, http://www.haaretz.co.il/
news/education/1.1639354.
13. HCJ 2504/11, Adalah, et al v. The Knesset, et al. (case pending).
14. HCJ 2072/12, The Coalition of Women for Peace, et al v. The Minister of Finance, et al.
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15. For more information about the law and the petition filed, see http://www.adalah.org/
eng/?mod=db&dld_page=law&slg=nakba-law-amendment-no-40-to-the-budgetsfoundations-law. HCJ 3429 /11 The Alumni Association of the Arab Orthodox School
in Haifa and others vs. The Minister of Finance.
16. See for example—‘50 municipal rabbis: Don’t rent flats to Arabs’, Ynet News, http://
www.ynetnews.com/articles/0,7340,L-3995724,00.html.
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