Meeting in Tel Aviv, members of a "Provisional Council of State" sign "the Declaration of the Establishment of the State of Israel." It announces "the establishment of a Jewish state in Eretz Israel [Mandate Palestine], to be known as the State of Israel" and refers to the UNGA resolution that was adopted on 29 November 1947 and had called for the establishment of a Jewish State in what the declaration refers to as "Eretz-Israel." However, it refrains from mentioning that the resolution had called for the partition of Palestine and the establishment of an Arab state and had delineated the borders of the Jewish state.
In July 2018 the Israeli Knesset approved "Basic Law: Israel, the Nation State of the Jewish People" (commonly referred to as the Nation-State Law). This was the thirteenth in the series of basic laws, requiring a majority of 61 members out of 120, that the Israeli parliament has passed since it was set up in 1949. After failing to reach consensus on a comprehensive constitution for the new state, the Knesset decided in June 1950 to draft it in stages by issuing separate basic laws as they become ready. The most important features of the Nation-State Law are that it restricts the right to self-determination to the Jewish people and ignores the rights of Palestinians in the state. Unlike previous core documents, it makes no reference to universal principles such as democracy and equality.
The passage of the Nation-State Law was the culmination of two political processes that were initially interconnected: a public-discourse process motivated by the launch of Israeli-Palestinian negotiations and a legislative process in the corridors of the Knesset.
After the signing of the Israeli-Palestinian Declaration of Principles in Washington in September 1993 and the implementation of some of its first provisions, such as the setting up of a Palestinian Authority under the leadership of Yasir Arafat, voices in Israel mounted against the policy pursued by Prime Minister Yitzhak Rabin on the Palestinian issue. With his assassination in November 1995, the right-wing discourse gradually dominated the public debate in Israel, and since then the cabinets, mainly based on coalitions between right-wing, extreme right, and religious parties, presented to the Palestine Liberation Organization stringent or impossible demands as preconditions for any progress in negotiations.
One of Israel’s demands that gradually occupied a central role concerned the issue of identity, in addition to those presented as security-related. On 25 May 2003, in response to the Road Map submitted by the United States to the Israeli and Palestinian sides in the previous month, the Israeli government under Ariel Sharon requested that the Road Map make an explicit reference to "Israel’s right to exist as a Jewish state." On 14 April 2004, in the course of a letter he addressed to President George W. Bush about Israel’s intent to disengage from the Gaza Strip, Prime Minister Sharon declared that the desired peace should be based on the principle of "the state of Israel as the state of the Jewish people, and a Palestinian state for the Palestinian people." Since then, a standard Israeli demand has been that Palestinians recognize Israel as a Jewish state; this demand has even become a precondition for pursuing negotiations. During the preparatory meetings for the Annapolis summit in November 2007 and the talks that followed, Foreign Minister Tzipi Livni, under the government of Ehud Olmert, expressed this position forcefully.
Israel’s focus on the Jewish identity of Israel set in motion a self-sustaining dynamic that became separate from the course of negotiations and in which internal political point-scoring played a significant role. The point-scoring moved to the corridors and the chamber of the Knesset shortly after the elections for the 18th Knesset in February 2009, when Benjamin Netanyahu succeeded Olmert as prime minister. Indeed, in March 2011 the Knesset passed three laws related to identity and commemoration: the Nakba Law, which allowed the government to withhold funding from associations that commemorate "Israel’s Independence Day as a day of mourning;" the Admission Law, which allowed small localities to vet and reject potential residents if they are deemed "incompatible with the social and cultural way of life of the community" (a measure widely understood as directed against Arab citizens); and a law amending the Citizenship Law, which made retaining citizenship contingent on loyalty to the state.
About four months later, on 3 August 2011, Knesset member Avi Dichter from the opposition Kadima Party deposited a draft "Basic Law: Israel–the Nation State of the Jewish People." The draft was supported by a sizable number of Knesset members (39), including from the ruling coalition. However, Dichter withdrew the draft from the 18th Knesset agenda in November at the request of Kadima Party leader Tzipi Livni, who thought that the text might upset the delicate balance between what she considered as Israel’s founding values: its Jewish identity and democracy.
During the subsequent 19th Knesset (March 2013–March 2015), a proposal by Prime Minister Netanyahu to revive the draft was opposed by the Hatnuah Party led by Livni and the Yesh Atid Party led by Yair Lapid, his partners in the governing coalition. This issue led to the dissolution of the Knesset in November 2014 and the holding of early elections for the 20th Knesset in March 2015. However, the elections resulted in a considerable increase in the number of seats held by Likud and in the formation of a more right-wing government, again under Netanyahu. Donald Trump’s inauguration as US president in January 2017 gave further impetus in the same direction. Work began on a draft law in May 2017. Eventually it passed through the necessary readings as a law in July 2018.
The Provisions of the Law
It is useful to read the main article of the law (Article 1) against the background of two core documents in Israel’s legal history: the Declaration of the Establishment of the State of Israel issued on 14 May 1948 and the 1992 Basic Law: Human Dignity and Liberty. The declaration announced the principles that would govern the new state, but its constitutional authority has long been debated. The basic law includes a 1994 amendment that upheld "the spirit of the principles" set forth in the 1948 Declaration.
Article 1 consists of three paragraphs.
1-A. To consider the land of Israel [Eretz Yisrael] as "the historical homeland of the Jewish people, in which the State of Israel was established."
The two principles contained in this provision were also enunciated in the 1948 Declaration. The latter had also referred specifically to UN General Assembly Resolution 181 and stressed that the latter called for the establishment of a Jewish state in Eretz Yisrael. However, the Declaration refrained from mentioning that the resolution called for the partition of Palestine and the establishment of an Arab state, thus opening the way for ignoring the issue of the borders as drawn by the resolution and for justifying territorial expansion when circumstances are propitious, as they were during the Palestine War of 1948 and the June 1967 War. In this regard, the Nation-State Law is consistent with the Declaration.
1-B. To view the State of Israel as "the nation state of the Jewish people, in which it realizes its … right to self-determination."
In enacting this provision, the Knesset has allowed itself to speak on behalf of all the Jews of the world. In this regard, the provision has no basis in previous basic laws and is also new compared to the 1948 Declaration. One could argue that the latter had implicitly affirmed the right to self-determination, but it had done so in relation to Israeli Jews and not to world Jewry.
1-C. To affirm that "the exercise of the right to national self-determination in the State of Israel is unique to the Jewish people."
With this provision, the drafters aimed to remove any doubt about the implications of Israel as the nation-state of the Jewish people. In contrast, the 1948 Declaration was careful to assert that the state of Israel "will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex" and referred to the principle of "full and equal citizenship and due representation" for "the Arab inhabitants of the State of Israel." The affirmation of these principles in 1948 did not necessarily mean that they would govern the political system that was taking shape, insofar as the Arabs were concerned; they were intended to assure the United Nations that the new state, in preparation for an admission request, accepted the principles of democracy, citizenship, and equality, which are explicitly mentioned in UN Resolution 181.
Similarly, the drafters of the 1-C. paragraph did not feel the need to heed the provisions contained in the 1992 basic law. The latter had referred to several rights that are seen as universal human rights (such as the right to life, dignity, personal freedom, and privacy) and said that they apply to "every person," which would mean Arabs and Jews alike. However, the 1992 text, whose main purpose was "to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state," did not specify which of the two principles, Jewishness or democracy, should take precedence if a conflict arises in applying them in specific cases. In addition, the 1992 basic law did not mention the principle of equality among citizens to avoid the corollary that Arabs would have to be treated like Jews in all public affairs (and also because religious parties considered the principle to be in conflict with Jewish religious law, in the case of the status of women, for example).
The Implications of the Law
The Nation-State Law meant the cancelling out of the positive, if already ambiguous, references to Arab citizens in the 1948 Declaration and the 1992 basic law. It not only failed to mention the political rights of Arabs; it also ignored their civil rights, whether individual or communal, as if the state of Israel were not the state of all its citizens or a state in which there lives a historical community with national and cultural characteristics that are distinct from those of the Jewish community. Only two references were made to the Arab presence in Israel: the law dropped Arabic as an official language in the state (Article 4-B.), a status it had enjoyed since 1922, and it acknowledged the right of non-Jews to observe their own rest days and religious holidays (Article 10).
Some have argued that the Nation-State Law is no more than a symbolic step that will have no negative results on official Israeli practices toward Palestinian citizens or on future legislative or judicial processes. This is not true: the Nation-State Law does in fact undermine the socio-political standing that Palestinians in Israel have been able to achieve within Jewish society since the establishment of the state. It also creates a constitutional framework that, under conducive political conditions, would make it possible to legalize the discriminatory practices that Israel has used against the Arabs since 1948. For example, Article 7, which encourages Jewish settlement as a "national value," might provide a constitutional justification for confiscating Arab land, a practice that had typically been framed as "expropriation for public purposes." In addition, so-called "temporary laws," emergency regulations, or administration orders issued since Israel’s establishment that have limited or deprived Arabs of basic rights could be given a permanent legal status on the basis of the Nation-State Law. The Supreme Court itself could be pressured to give the Jewishness of the state precedence over the other values mentioned in the 1992 basic law.
It might also be argued that restricting the right to self-determination to the Jewish people, although unjust, applies only within the borders of Israel and that it does not exclude the right to self-determination of the Palestinians residing in what remains of Eretz Yisrael (the West Bank and the Gaza Strip). But if an Israeli government decides to annex part of the West Bank (as it did with the annexation of East Jerusalem in 1967 and almost did in January 2020 with the announcement of President Trump’s Peace Plan), the question arises whether Palestinians who reside in the annexed area would keep or lose their right to national self-determination.
Although the Nation-State Law raises grave questions, it could have gone further had Avi Dichter’s August 2011 draft been adopted. His proposal included a provision declaring that any article in the law or in any other law should be interpreted according to the understanding that self-determination is the exclusive preserve of the Jewish people; that Jewish law should be a source of inspiration for legislators; that in the absence of any other solution, the Supreme Court should rule according to Israel’s heritage; and that the state should be free to allow the setting up of residential communities exclusively reserved to members of a particular religion or ethnicity.
Israel’s Supreme Court and the Nation-State Law
A few days after the Nation-State Law was passed in July 2018, Israel’s Supreme Court received fifteen requests to invalidate the law. This was the first time in the history of the state that the Supreme Court had been asked to rule on the legality of a basic law. Some Knesset members were alarmed and accused the court of interfering in legislation and censoring the Knesset even when it passed basic laws.
On 8 July 2021, the Supreme Court confirmed the constitutionality of the law, thereby avoiding the need to determine whether it had the authority to exercise judicial review of basic laws in general. It said that the Nation-State Law had to be seen as one of the chapters of the state’s constitution, the other chapters being the basic laws that were already issued by the Knesset. The court asserted that the Nation-State Law, which spelled out the components of the state’s identity as a Jewish state, did not detract from the state’s democratic nature, a principle that was set out in other basic laws. The court declared that the Nation-State Law should be interpreted according to the principle that there is constitutional harmony between all the basic laws and that it is possible to find a solution to the problems that the petitioners raised by resorting to the usual and accepted rules of interpretation. The court did concede that it would have been preferable if the law had explicitly cited the principle of equality but it claimed that its omission did not mean that this was not a fundamental principle in the Israeli legal system.
In the light of this expedient, the ruling said that affirming the Jewish people’s national right to self-determination (Article 1) does not negate accepted personal or cultural rights for minorities in matters that fall below the national level. On language (Article 4), the court resolved that declaring Hebrew as "the state language" does not downgrade the stance of Arabic in practice or symbolically, and it does not exclude the possibility that the status of Arabic might be enhanced. On encouraging Jewish settlement as "a national value" (Article 7), the court rejected the claim that it contradicted equality as a value.
The court ruling was attained by a majority of ten to one, the one dissenting judge being George Karra, the only Arab judge on the bench. In explaining his dissenting opinion, Judge Karra affirmed that the law "endorses unconstitutional arrangements, by abandoning the essence of the democratic nature of the state" and by "imposing grave harm on minorities on an ethnic basis." He explained that the omission of equality from the law "is a deliberate omission designed to prejudice democracy and the principle of equality." Since inequality already exists in practice, and since the principle of equality is not yet a "firmly established constitutional principle" in the Israeli legal system, passing the Nation-State Law is likely to "aggravate the current violations of the principle of equality."