Netanyahu wants to kill the two-state solution. Good!

PM Netanyahu’s pre-election promise to extend Israeli sovereignty to settlements in Judea and Samaria created great consternation among American Jews. The Reform and Conservative movements and several satellite organizations were so upset that they sent a letter to President Trump urging him to oppose the annexation of any territory in Judea and Samaria (which they, following Jordanian usage, refer to as “the West Bank”). The letter argues that such actions could “destroy any chance of a negotiated two-state solution” (the expression “two-state solution” appears five times in a one-page letter).

Although many headlines refer to Netanyahu’s intention to “annex the West Bank,” his promise referred only to Jewish settlements. But two-staters see this as a threat against the whole two-state enterprise. They fear that applying sovereignty to the settlements will make it impossible to dismantle them. And if the settlements cannot be removed, then their stubborn presence will prevent the establishment of a sovereign and contiguous Palestinian state. Only such a state, they think, can avoid the “insoluble” dilemma that Israel must ultimately either make citizens of all the Arab residents of the territories and give up its Jewish majority, or annex them without making the residents citizens, and give up democracy.

But there is almost nothing more dangerous (except perhaps an Iranian atomic bomb) to the survival of Israel than a sovereign and contiguous Arab state in Judea and Samaria.

The reason is simple: a Palestinian state would be hostile to the Jewish state, and it would be strategically located on high ground next to the center of the country where it could do huge damage almost at will, with simple and cheap weapons like those used by Hamas in Gaza. It could invite armies from other hostile states into its territory. As a sovereign state – like Lebanon, for example – it could support terrorism against Israel, while any attempt by Israel to counter it could be characterized as aggression.

Those who predict the future by wishing for a particular outcome say that a Palestinian state need not be hostile. But those whose predictions are based on past behavior, on analysis of the statements, character, and ideology of Palestinian leaders, and by observation of their current actions – that is to say, on reality – understand that it is certain that the state would be a violent, belligerent enemy. Here are just a few reasons:

  1. The Gaza precedent. Even before the Hamas takeover, Gazans fired rockets at Israeli communities across the border, and launched terrorist attacks. The Hamas takeover opened the floodgates of terrorism, with massive rocket barrages, tunneling, and so on. In Judea/Samaria, even if the PLO were interested in peace, it could easily be overthrown by a more-militant group like Hamas – or worse.
  2. PLO ideology. Despite strenuous lobbying by President Bill Clinton, the PLO never actually eliminated those parts of its charter calling for violent “resistance” to Israel. The Palestinian Authority media and its educational system have never stopped claiming that all of Israel is in fact “Palestine,” was stolen from the Arabs, and will be returned to them by means of violent “resistance.” PA media consistently praises terrorists and incites Palestinians to murder.
  3. Palestinian authority policies. Despite Israel and the US acting to cut off funds that are used to pay terrorists and their families, the PA has continued to pay them – even when it means that funds for medical care for ordinary Palestinians will be cut.

I could go on, but why bother? Since there is no way to ensure that a deal made with a Palestinian partner today would be operative tomorrow – or that that partner would still be in power tomorrow – the exercise is academic anyway. The only way to prevent the creation of a belligerent Palestinian state is to prevent the creation of a sovereign state at all.

It’s doubtful that such a state could survive on its own anyway. “Palestine” would be a tiny state, much smaller than Israel, and – if the economies of the PA and Gaza are any guide, not viable. Palestinians will tell you that their economies are hobbled by “occupation,” but the fact is that the PA and Gaza receive help in various forms from Israel and have fewer expenses than they would as a sovereign state. Their economies are wracked by corruption, addiction to handouts, and – in the case of Gaza – the diversion of resources into making war against Israel.

But what about the “insoluble dilemma” that would prevent Israel from being both Jewish and democratic if there were no Palestinian state? In fact, there are several solutions. One of them is to create an autonomous Palestinian entity that would allow for economic development and allow the Palestinians to rule themselves with no interference from Israel – insofar as they refrain from terrorism against the nearby Jewish state. It needn’t be contiguous, and probably it’s better that it not be.

Control of borders and airspace must remain with Israel, and the Palestinian entity must be demilitarized, in order to prevent it from becoming a threat to Israel. In that respect, it would be less than a sovereign state. There would be complications: it is not as easy as simply annexing Area C. But there is no other alternative that allows for a peaceful Palestinian entity alongside Israel.

The Palestinians would not accept this at first and would continue their diplomatic and kinetic warfare against Israel. But they would do so anyway; and it would be easier for Israel to protect herself against them than if they had a completely sovereign state.

At this point, the objection may be made that such an arrangement would be unjust. Shouldn’t the Palestinian people have a sovereign state, too, like the Jewish people? Don’t they, in the words of Barack Obama, deserve a state?

In a word, no.

The Palestinian Arabs didn’t even self-identify as a distinct people until the 1960s, when the PLO was formed as a joint project of the Egyptians and the Soviets as a tool to attack Israel. Suddenly the Palestinians, who had disparate origins in the Middle East – most families have only been in the land we call Eretz Yisrael since the late 19th or early 20th centuries – became a “people” with a “national liberation movement.” Suddenly the Jewish people, who had good historical and archaeological evidence for their claim to be the aboriginal inhabitants of the land, became “European colonialists,” while the Palestinians made scientifically ludicrous claims to be descended variously from Canaanites or Philistines. From the beginning, the only specifically “Palestinian” aspect of their culture has been their opposition to Jewish sovereignty in Eretz Yisrael.

Their demands have always been maximal, and they have rejected numerous compromises, usually violently. The Arab response to the 1947 UN partition resolution was war, and Arafat’s answer to the Camp David summit was the Second Intifada. Since before the founding of the State of Israel, Palestinian Arabs have expressed their frustration with the Jewish presence, and now sovereignty, by murdering Jews. Although they were not the first to use them, they popularized airplane hijacking and suicide bombing. Palestinians didn’t perpetrate 9/11, but they were its spiritual father. Today they have created an even more inhuman weapon, a generation of children raised to believe that nothing is more praiseworthy than slaughtering a random Jew in the street.

Most Israelis understand all this quite well, and that is why – despite their myriad problems with him – they have democratically chosen Binyamin Netanyahu to be PM yet again. Security has always been the political issue that overrides all others, and they are convinced (one hopes correctly) that Netanyahu will stand up to the pressure coming from antisemitic Europe and uninformed America – including liberal Jews – and will not make another disastrous mistake like the Oslo Accords.

The American Reform and Conservative movements love the idea of democracy, and talk about it all the time. They would do well to get used to the idea that the results of the democratic process may not always be to their liking.

Posted in 'Peace' Process, American Jews, Israel and Palestinian Arabs | 3 Comments

“Everyone knows” … but everyone’s wrong

I don’t know how many times I’ve seen Judea and Samaria referred to as “occupied Palestinian territories,” and Jewish settlements there called “illegal under international law.” But the territories are not “Palestinian,” they are not “occupied,” Jewish communities there are not illegal, and Israel is not oppressing millions of Palestinians who also live there.

PM Netanyahu’s promise to extend Israeli sovereignty to the settlements – and not, by the way, “to annex the West Bank” as so many headlines have it – has re-ignited debate about these issues. But nothing’s changed. Here are some popular but false statements about Judea/Samaria and the Jewish communities that have been established there:

  1. The “West Bank” is “Palestinian land” which Israel is occupying

Judea and Samaria, like the rest of Israel and Jordan, were part of the Ottoman Empire from the 16th Century until the end of WWI. After the war, the League of Nations agreed to set aside this portion of the former Ottoman territory to be held in trust by Britain to become a national home for the Jewish people. Britain gave the eastern portion to Abdullah bin Hussein as a reward for his help and that of his father, Sharif Hussein of Hejaz, in the war; this would ultimately become Jordan. The land between the Jordan River and the Mediterranean, including what would become the State of Israel and Judea/Samaria and Gaza became the Mandate for Palestine.

The Arabs living in the Mandate were strongly opposed to Jewish sovereignty, and the British, from a combination of the desire to appease the Arabs to reduce their violence (which expressed itself against both Jews and the British rulers), the desire to keep “Palestine” under their control for strategic purposes, and sheer antisemitism, abandoned their responsibility to the Jewish people and tried to throttle Jewish immigration, while allowing Arabs from surrounding areas to enter.

In November 1947, the UN – which had assumed the obligations of the League of Nations – passed a resolution (UNGA 181) recommending the partition of the Mandate into a Jewish and Arab state. The Palestinian Jews were prepared to accept a truncated state (it would be the second truncation of the land originally set aside for the Jews), but the Palestinian Arabs and the Arab nations wanted all the territory to be under Arab sovereignty, and rejected the resolution.

It is important to note two things: first, the resolution, because it was passed by the General Assembly and not by the Security Council under Chapter VII of the UN Charter, was advisory, not mandatory. And second, because the recommendations were never implemented, they became moot.

The British, exhausted after WWII and tired of the attacks against their occupation forces by both Jews and Arabs, ended the Mandate in May, 1948, and went home. The Jews, who had used the Mandate period to build all the institutions required for a state – an army, an educational system, a labor federation, various state enterprises, and more – declared the State of Israel in the area assigned to them by the partition resolution. The Arabs, who could have done the same, did not do so. They redoubled their violent attacks on Jews. At the same time, the armies of five Arab nations invaded the area, intending to destroy the new state of Israel and take the land for themselves (and not to establish a state for the Palestinian Arabs!)

The war that followed ended with a cease-fire in 1949. The Arab nations would not agree to make a permanent peace or recognize the Jewish state, but they signed cease-fire agreements that demarcated the positions of their troops. These agreements explicitly stipulated that the cease-fire lines were not national borders. The areas of Judea/Samaria and Gaza were occupied by Jordan and Egypt respectively, and in 1950 Jordan formally annexed the territory it had occupied and named it the “West Bank.” This is the first time that name was used to refer to what had previously been called “Judea and Samaria.”

The Arab invasion clearly violated the UN Charter, being a “use of force against the territorial integrity or political independence” of the State of Israel, and therefore the annexation of Judea and Samaria was also illegal. Only Britain (and possibly Pakistan) recognized it. During the war and afterwards, Jordan regularly committed war crimes, violating the Geneva Conventions by ethnically cleansing the Jewish population from the territories they occupied, destroying Jewish synagogues and cemeteries, and not allowing access to Jewish and Christian holy sites during the entire 19-year occupation.

In 1967 the Arabs again planned to destroy Israel, and some Arab leaders even made genocidal statements. Although it is true that Israel fired the first shots, it is generally accepted that this was a case of legitimate military preemption of an imminent attack, and that Israel’s actions were justified self-defense. The war ended with Israel in possession of Judea and Samaria, as well as Gaza.

The argument is made that the UN charter forbids acquisition of territory by force. That is not correct. It says that

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. (Art. 2, Sec. 4)

But it also says that

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. … (Art. 51)

If Israel’s actions in 1967 were legal, what is the status of Judea and Samaria? Many people say that it is a “belligerent occupation.” If so, it would still be entirely legal, just as the allied occupation of Germany after WWII was legal. But if it is an occupation, whose territory is being occupied? Not Jordan’s, whose possession of it was illegal from the start!

The last entity in legitimate possession of Judea/Samaria was the British Mandate, which no longer exists. But the only national entity that could reasonably have been considered the inheritor of the Mandate’s boundaries is the State of Israel. Given also that the Mandate was intended for the purpose of establishing a national home for the Jewish people, and considering the well-documented claim of the Jewish people to be the aboriginal inhabitants of the land, it is reasonable to see the events of 1967 as the liberation of territory that was illegally occupied, and its return to the legitimate owner, Israel.

In 1988, King Hussein of Jordan relinquished his claim to Judea and Samaria, in favor of the PLO. But since Jordan had no legitimate rights to the territory to begin with, the gesture was meaningless.

It is true that the Palestinian Arabs wish to possess Judea and Samaria (not to mention Haifa and Tel Aviv), and there are numerous members of the UN that agree with them for religious, cultural, economic, and yes – antisemitic – reasons. But wishing will not make the 1949 armistice lines a border, and wishing will not make Palestinian Arabs the legitimate heirs of the British Mandate, nor – despite their creative approach to history – the aboriginal inhabitants of the Land of Israel.

  1. Settlements are illegal under international law

This is a favorite of many news media and European governments, who feel a compulsion to add “which are illegal under international law” after any mention of Israeli settlements. But even if you accept (as I do not) that Israel’s possession of Judea and Samaria constitutes belligerent occupation, the usual argument that settlements constitute a violation of the Fourth Geneva Convention provision against population transfer into an occupied territory is very weak. This protocol was established after WWII with the intent of criminalizing actions such as Germany’s deportation of its Jewish residents to occupied Poland, and not to prohibit voluntary settlement on public lands (a more complete treatment of this subject is here). It should be noted that there have been additions made (e.g., the 1977 “Additional Protocol I”) to the Geneva convention specifically aimed at Israeli policy, but Israel and other nations, including the US, have not ratified them.

  1. Israel is oppressing millions of Palestinians in Judea and Samaria

When Israel and the PLO signed the Oslo Accords in 1993-5, they agreed to divide Judea and Samaria into Areas A, B and C. Area A was under Palestinian security control and civil control, Area B (much smaller) under Palestinian civil control and Israeli security control, and Area C under full Israeli control. Area C contains all Jewish settlements. More than 95% of the Palestinian population lives in areas A and B, where they are governed by the Palestinian Authority (PA). While it is true that Israel’s security forces reserve the right to enter area A to arrest wanted terrorists, Palestinians have civil and political rights granted by the Palestinian Authority to vote and hold political office. There are Palestinian courts and Palestinian police, Palestinian ministries of health, finance, labor, etc. It’s hardly fair to  blame Israel for the fact that the PA is corrupt and dictatorial, and hasn’t held an election for years.

Conclusion

PM Netanyahu’s decision to extend Israeli law to the settlements in Area C would not have any effect whatever on Palestinians living under the control of the Palestinian authority, and it does not change the status of the territories in which they are located. Israel will never abandon Judea and Samaria entirely, although it is possible that some part of them could become an autonomous Palestinian entity. But – for security, if for no other reason – Israel could never agree to a sovereign Arab state west of the Jordan, nor could it agree to the kind of massive withdrawal and dismantling of settlements that was envisioned in the Obama period. So the idea that “Netanyahu has killed the two-state solution” is silly. The two-state solution was never alive because of simple geostrategic facts.

Isn’t it nice that international law agrees.

Posted in Israel and Palestinian Arabs, Middle East politics, War | Comments Off on “Everyone knows” … but everyone’s wrong

Israel loves its army

When the body of Sgt. Zachary Baumel, missing for 37 years since the battle of Sultan Yacoub in the First Lebanon War, was returned to Israel, I first heard it on the hourly radio newscast.

Almost the entire newscast was devoted to this one story. The next day it was in the headlines of all the papers. Every Israeli politician, newspaper columnist, or TV/radio personality had something to say about it. When he was buried Thursday night at the military cemetery on Mount Herzl in Jerusalem, thousands of people attended his funeral. The President and Prime Minister, among others, delivered eulogies there. Army commanders, from the Chief of Staff on down, were present.

One soldier, or to be precise, the body of one soldier. 37 years. Yet, the reaction was national in scope.

A few months ago, a soldier named Ronen Lubarsky was murdered when a terrorist dropped a huge stone slab on his head from a rooftop. It turned out that he lived here in Rehovot. Someone forwarded a WhatsApp message to me one evening, saying that his parents were having a minyan at their home in the morning. I should go, I thought, people have to work and they might not get a minyan. It was only a couple of blocks away, and as I got closer I saw that every parking spot, legal or not, was occupied. I shouldn’t have worried: there were hundreds of people there, old and young, soldiers and civilians, religious and not-so-religious, who came to support Ronen’s parents and siblings.

The next story is different in some ways, but also the same. A young man came to Israel from America by himself to volunteer for the IDF, to be a “lone soldier.” Alex Sasaki was a member of the Golani Brigade, which is difficult to get into and has a tough training period. He didn’t die from enemy fire, but rather from an apparent drug overdose. He too had thousands come to his funeral, and his death gave rise to an outcry that the army doesn’t provide sufficient support for lone soldiers, who can’t go home to the warmth of their parents and friends when they get leave from the army. Two of my children were lone soldiers and I think the experience changed them from children into adults, even more sharply than it does for native Israelis. They won’t say, but it couldn’t have been easy.

Israel loves its soldiers, not only because they are everybody’s kids, but because everybody was in their shoes (actually, boots) and can identify with them. Everybody has personal experience with the feelings of loneliness, along with the camaraderie with one’s peers, that characterize military service. From the point of view of a parent, as well, there is nothing like knowing your child is a combat soldier, uncomfortable, in harm’s way, in some inhospitable place, maybe under a mortar barrage like the one he described the last time he talked to you.

My son’s army unit was stationed in South Lebanon before the withdrawal in 2000, and they often came into contact with Hizballah. It wasn’t exactly a big war, but there was plenty of shooting – and some casualties. When he and his friends had time off, they would go to a well-known steak restaurant in Jerusalem. The owner gave every one of them what they wanted at no charge, which was usually steaks all around. Not hamburgers, and not the cheap stuff. I can’t imagine how much it cost. I don’t know if the restaurant or its owner are still around, but the former soldiers won’t forget him.

We take enormous care that our soldiers aren’t captured, lest they be held as hostages like Gilad Shalit, who was imprisoned by Hamas in a booby-trapped underground bunker for more than five years, until he was freed in a foolish and irrational “prisoner exchange,” in which 1027 Hamas terrorists held by Israel – terrorists responsible of the deaths of over 500 Israelis – were exchanged for him. Many of those released immediately went back to their murderous ways, and several committed additional murders. The government has said that it will never make a deal like that again, but the pressure to ransom a captured soldier – someone’s child that could be anyone’s child – is tremendous.

Ahlam Tamimi, the woman responsible for the murderous Sbarro Pizza bombing in Jerusalem in 2001 (and who, by the way, was released in the Gilad Shalit exchange), was greatly pleased when she found out that she had murdered more children than she had previously believed. From the very earliest days of Arab terrorism against Israel, children have been disproportionately targeted – think also of the Ma’alot massacre, the Bus of Blood, the Misgav Am attack, the Dolphinarium bombing, and many more – because our enemies understand that nothing is more painful for us (in a classic case of Palestinian reality inversion or psychological projection, they like to claim that the IDF deliberately targets Arab children, a vicious lie).

One might wonder if there is any other country in the world that relates to its soldiers like Israel does. I certainly don’t know of any. Our enemies see it as a weakness to be exploited, and do so whenever they can. But it is also a strength, a motivation the leads Israeli young people to volunteer to take risks, knowing that they are not alone. The nation stands behind them.

There are those that suggest that Israel would be better off with a professional army. There is much that can be said for that in terms of efficiency and maybe even fighting ability. But we should tread very carefully if we go in that direction. There is something very special, although intangible, about the relationship of Israelis to their army that should be preserved.

When you love someone, you do things for them that are entirely for them, that return to you nothing but the feeling that you have made the life of the one you love better in some sense. Israel depends on the IDF to protect it. But it’s also true that Israel loves the IDF, collectively and individually, in the strongest sense of that word.

Posted in Israeli Society, War | 2 Comments

Don’t apologize

Often I read “pro-Israel” articles, usually by American Jews, which include a statement like this: “Of course I disagree with many of Israel’s policies, but…” Or, “Of course, Israel treats the Palestinians badly, but…” Or, “Of course the occupation is immoral, but…”

I appreciate the “but,” and usually the article goes on to explain that the state really does have a right to exist, that Israel really isn’t guilty of genocide, or that people should be nicer to Jewish college students, who aren’t responsible for Israel’s policies.

But the apologetic prelude, an attempt to establish bona fides among an audience already marinated in anti-Israel propaganda, is cowardly and wrong.

Israel is doing the best she can, and much better than most Western democracies in the moral behavior department (I won’t even dream of comparing her to the various murderous dictatorships in the region).

Yes, a few Arabs have gotten shot to death while trying to do a World War Z number (video, 4:27) on our southern border fence. We should have invited them into our homes? If someone were climbing your back fence with a knife in his teeth, what would you do?

We tried, over and over, to give them a state. It was stupid, and we’re lucky they wouldn’t take it. Now they are refusing to talk. Good. They’ve demonstrated in Gaza what happens when we give up control of territory. So, what, exactly, are we doing wrong when we don’t unilaterally leave the high ground near our center of population?

Yes, there are checkpoints that Arabs from the territories have to pass through to get into Israel. Several times a week, someone is stopped with a knife or worse. Often, terrorists sneak into Israel around the unfinished (why is that?) security barrier, and murder people. The checkpoints are a real pain in the ass for Arabs that work in Israel. How racist we must be to have them!

Yes, we arrest “children” (some as old as 17) for throwing rocks and firebombs at cars containing Jews. Sometimes the Jews in the cars are killed or maimed. How cruel we are, to children! And before you say it, it’s true that sometimes (much more rarely) Jewish kids throw rocks at Arabs. We arrest them too.

Arab terrorists stab Jews on the street or try to hit them with their cars. They incite their kids to murder.

The Gazans are setting fire to the southern part of our country with their balloons and kites, like last year, as soon as the weather has started to dry out. They threaten to tear down the border and “rip out the hearts” (video, 0:51) of the Jews who live nearby. A rocket from the Gaza Strip destroyed a house in central Israel the other day, and injured several people – only the fact that we require a reinforced concrete “safe room” in all new construction prevented a worse tragedy. We shoot down their rockets in the area around Gaza with the Iron Dome system, whose every launch costs us tens of thousands of dollars. Sometimes we don’t succeed, and the residents have 15 seconds or less to scramble into their safe rooms.

But there is so much to criticize in our “treatment of the Palestinians!” For example, we block the import of metal pipes (used to make rockets) and cement (to line tunnels under the border) to Gaza. After the most recent outbreak of rockets, incendiary devices, riots next to the border fence, and explosives thrown at our soldiers, we have promised to make life easier for Gazans by increasing the number of trucks carrying food, medicines and other goods into the Strip, increasing the amount of electricity we give it (what other country supplies her enemies?), and more. In return, they just have to stop trying to kill us.

This is apparently not good enough for our critics, who think there should be no blockade at all. Let the Gazans have all the pipes and cement they want. The critics should try living in Sderot or one of the smaller communities near Gaza.

Even historically, Israel looks pretty good. Yes, there was the nakba, in which between 500-700 thousand Arabs fled the 1948 War of Independence. A small number, particularly in villages that were hostile and fought alongside the troops from the Arab countries that had invaded our country, were actually kicked out. And after the war, we didn’t let them come back (had we done so, we would not have had a state). We still ended up with some 150,000 Arabs in our country, who ultimately got the right to vote. The Arabs who left for whatever reason were kept in camps by the Arab states, and they and their descendants made into perpetual refugees living under conditions of apartheid, by the Arab states and the cowardly UN. But as expiation for our guilt, we are expected – by the Palestinians and BDS supporters worldwide – to invite all 5 million of them to live in our country, thus ending it.

Should I mention that the Jordanians kicked out or killed every single Jew in the area that they conquered in 1948? That they broke the cease-fire agreement that called for all religious groups to be allowed to visit their holy sites? That some 800,000 Jews were forced to leave Arab countries, and most were absorbed by Israel? Now that’s ethnic cleansing. Let’s also not forget the genocidal threats made by Arab leaders in 1967.

I could go on, and on, and on. Israel has never committed genocide like the US or Germany, or mass murder like Russia. It has never nuked anyone, like the US. The number of Arabs living between the river and the sea has tripled since 1970. We have never had slavery. Our ratio of civilian to military deaths in urban warfare is the lowest in recent history. We use the “knock on the roof” technique and cellphone calls to warn civilians that a building will be bombed. We send soldiers in when artillery or air strikes would be safer for us. We do not engage in wars of conquest; indeed, we tend to (stupidly) give territory back to our defeated enemies.

Israel is a democracy, it is increasingly tolerant of alternative lifestyles, and increasingly intolerant of mistreatment of women. It does not persecute religious minorities. It has a relatively free press and permits free speech.

And yet, even our defenders find it necessary to insert a disclaimer.

Why? The Jewish people should be proud of its homeland, which has survived – and is surviving – repeated assaults from her neighbors, as well as viciously bigoted treatment from many other nations and institutions – while still doing a good job of maintaining freedom and protecting her citizens.

No, she isn’t perfect. No nation is. But don’t apologize; it’s not necessary, and anyway nothing short of national suicide will satisfy her critics.

Posted in Israel and Palestinian Arabs, Israeli or Jewish History, Israeli Society | Comments Off on Don’t apologize

The Nation-State Law under attack

Amos Schocken is the publisher of Ha’aretz, the employer of Gideon Levy and Amira Hass, of Rogel Alpher and B. Michael, and other writers who pour out their hatred of the Jewish state both in Hebrew and English translation. To someone like me who believes that the battle to defend Israel in the information sphere is as important as the kinetic conflict on the battlefields, Amos Schocken is the devil.

Schocken and the rest of the Israeli Left passionately hate the recently passed Nation-State Law. To them, the statement that “Israel is the nation-state of the Jewish people” is anathema. It is a statement of Zionism, which is Jewish nationalism. And they don’t care very much for either nationalism (except perhaps Palestinian nationalism) or anything connected with Jewishness. In fact, I suspect that they don’t care much for Jews either; but that’s another blog.

For those who don’t know, Israel does not have a constitution as such. When the state was declared in May 1948, there was no time to create one in the midst of a war. The Declaration of Independence optimistically set a date five months in the future at which a constitution would be adopted. But the differences of opinion about the nature of the state, between religious and secular, socialist and capitalist, were so great that it was – and still is – impossible to develop a comprehensive document that everyone can agree on. Instead, it was decided on an incremental approach: to pass a series of Basic Laws that, taken together, would fully define the state. This task is still incomplete.

The Declaration of Independence refers to the state that is coming into existence as a “Jewish state,” asserts “the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State” [my italics] and adds that

The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.

Since then, several Basic Laws have been passed that define how all the citizens of the state can exercise their rights to vote and hold office. There are also a Basic Law: Human Dignity and Liberty, and a Basic Law: Freedom of Occupation, which have been very broadly interpreted by the courts to guarantee many other rights and freedoms to all Israeli citizens.

These laws contains the formulation “Jewish and democratic state” which, while it doesn’t occur verbatim in the Declaration of Independence, is generally considered to be an accurate description of what the founders had in mind for the nature of the state. The problem is that it is not at all clear what “Jewish” means in this context.

It is pretty clear what “democratic” means: there will be a democratic process for determining the nation’s policies and choosing its leaders, there will be democratic institutions, a rule of law, and citizens will have equal “social and political rights.”

But “Jewish” could mean anything between a state whose laws are identical with Jewish law (a halachic state) to a state with a Jewish majority but no other special features. Nevertheless, it is clear that the founders intended more than just the latter when they said “their own sovereign state.”

There have been pressures from some non-Jewish citizens and left-wing Jews like Schocken to redefine the state as “a state of all its citizens.” Some want to eliminate all specifically Jewish content from the symbols of the state like the flag and the national anthem, and repeal the Law of Return for Jews. In response to this, the Knesset considered – for a period of years – and finally passed, the Basic Law: Israel as the Nation-State of the Jewish People, which explicates the meaning of “Jewish state.” The most important part of it is this:

The State of Israel is the nation state of the Jewish People, in which it realizes its natural, cultural, religious and historical right to self-determination.

The exercise of the right to national self-determination in the State of Israel is unique to the Jewish People.

Amos Schocken would like to see the law overthrown by Israel’s Supreme Court. He asserts that the Court has the power to do this, even though the law itself, as a Basic Law, has constitutional force. This is because of a clause inserted in two basic laws passed in 1992, which can be interpreted as making the Declaration of Independence a “fundamental principle” or source of “supreme values” against which all laws – even constitution-like Basic Laws – can be measured.

This assumption presents significant problems. The Declaration of Independence wasn’t intended to be a constitution, as shown by the provision it contains that a constitution for the new state be adopted within five months. And anyway, even if the Court’s authority to annul a Basic Law on the basis of the Declaration of Independence were granted, the whole issue rests on the interpretation of terms (e.g., “Jewish State”) that are used but not defined in the Declaration.

Schocken argues that the Declaration promises Arabs full “social and political” rights. And he is correct. But then he conflates these rights with the right to a national home in Israel for Palestinian Arabs, which it clearly does not grant them. He writes:

How is this [the Nation-State Law] at all conceivable given the explicit statement in the Declaration of Independence that Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex”? The nation-state law clearly cannot be reconciled with the value of equality as stated in the Declaration.

Of course it can be reconciled, if we maintain the distinction between “social and political” rights – what Americans might call “civil rights” – and “national rights,” including the “right to national self-determination” asserted in the Nation-State Law.

So what are these national rights guaranteed by the new law? Some are “only” symbolic, like the flag, the national anthem, the symbol of the state, holidays, and so on. But some are supremely practical and a matter of life and death: the Law of Return for Jews and the commitment to encourage the ingathering of exiles, Jews from around the world. These rights are what make it possible for Israel to be a place of refuge for persecuted Jews everywhere; the victims of the Nazis, the Jews expelled from Muslim countries, the Soviet Jews, and the growing number of Jews fleeing from violent antisemitism in Europe.

Those who oppose the Nation-State Law say that it takes away rights from non-Jews. But the only “right” it reserves to the Jews is the right to self-determination in their national home, Israel. And this is not a right we wish to grant to anyone else.

In truth, it isn’t a question of democracy. Schocken and his friends are embarrassed by the fact that Israel is still an ethnic nation-state as its founders intended, and they want it to follow the model of European and North American democracies and become a “state of all its citizens.” The Israeli Arab intellectuals who wrote the “Future Vision” document several years ago go farther, and say that they want it to become a binational state, with “Palestinian Arabs” (they define themselves as an “inseparable part of the Palestinian people”) having an equal role with the Jewish majority in the state’s decision-making. Indeed, they also demand a right of return for Arab “refugees,” so even the Jewish majority would be short-lived.

There is good reason to worry, from past behavior, that Israel’s left-leaning Supreme Court will adopt the view that it can adjudicate Basic Laws as Schocken describes, and go on to invalidate the Nation-State Law on spurious grounds. This would create a constitutional crisis that would set the Court directly against the majority of the Knesset, the PM and cabinet, and the majority of Israeli citizens. Most likely the Court would lose, and end up with its power severely circumscribed – and its reputation even worse than it is now. I believe that only the imminence of the election keeps this from erupting now.

An alternative would be for the legal establishment, the Justice Minister (who I hope will be Ayelet Shaked again after the election), and the Knesset to work together to formalize the relationship of the Court to the rest of the government, and clearly define its areas of jurisdiction and the limits of its power.

That would be the adult way to handle it. We’ll find out after the election if our leaders are capable of behaving like adults.

Posted in Israeli Arabs, Israeli Politics, Post-Zionism, The Jewish people | Comments Off on The Nation-State Law under attack