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Israel's referendum law: Who gets asked?

The concept of a referendum – a direct vote by the qualified voters of a state – is customary in some countries, as part of a nation’s right to determine its future. It is only in Israel that we see the perplexing notion of asking citizens of the occupying power – rather than the occupied population – to determine the political fate of the occupied people

By Aeyal Gross | Translation: Dana Shunra

Palestinian kids during a protest against a roadblock constructed near their village. Al-Jab’a, 2006 (photo: micaelramallah/flickr)

The new legislation enacted by the Knesset, requiring a referendum to be held in Israel to approve any relinquishment of any territory to which Israeli law has been applied, is highly problematic. More than anything else, the new law makes evident the extent to which Israel has become accustomed to the denial of the rights of the Arab population living under the Israeli occupation.

Despite the fact that the law is (at this point, at least) limited to territories where Israeli law has been applied (which means that it is only relevant to East Jerusalem and the Golan Heights and not to the rest of the Occupied Territories), the determination that the citizens of Israel are the appropriate persons to vote on the future of these territories – rather than the residents of the territories themselves – undermines the claim to democracy, which underlies the idea of a referendum.
When the question of Quebec’s future was being discussed in Canada, the residents of Quebec (and not all Canadian citizens) were the ones who, in 1995, cast their votes on whether to continue to be part of Canada or to secede and become an independent state.

Similarly, the residents of East Timor (and not of Indonesia, which had occupied it) were the ones who voted in the popular consultation on the future of the territory in 1999. And in Northern Ireland, it was Northern Irish voters who endorsed the Belfast Agreement that defined their future, and put in place the complex relationship between them and the United Kingdom. In this last case, the residents of Ireland itself also voted in a referendum but only on the question of amending their own Constitution to bring it into line with the terms of the Belfast Agreement. There was no referendum for the citizens of the United Kingdom, which controls Northern Ireland, as a whole.

The use of referenda in the context of self-determination claims and in deciding the future of disputed, occupied and non-self- governing territories is not unusual. However, it is only in Israel that we find the perplexing prospect of a referendum in which it will not be the residents of the territories in question who will determine their future – but rather, the citizens of the State of Israel who will determine the future of the occupied population for them.

The essential concepts of democracy and self-determination demand that the residents of the Occupied Territories be the ones to decide their own future. The future of the Golan Heights should be decided by its residents who found themselves under Israeli rule after 1967: the same principle should apply to East Jerusalem and to the Occupied Territories in general.

However, in Israel an odd idea has taken root: that the decision whether the residents of territories occupied by Israel, and who live under Israeli rule against their will, should continue to live under Israeli occupation should be made by the residents of the occupying State – rather than by the residents of the territories themselves – and that this is to be done in the name of democracy.

Considering the general Israeli denial of the rights of the Arab population and specifically the Palestinians, this may not be a very big surprise.

Prof. Aeyal Gross teaches international and constitutional law in Tel-Aviv University; he is currently also a Visiting Reader in the School of Oriental and African Studies (SOAS) at the University of London and the Joseph Flom Global Health and Human Rights Fellow at Harvard Law School. A Hebrew version of this post was published on Haoketz.org.

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    COMMENTS

    1. Y.

      Prof. Gross should be careful what he wishes for. After all, he is recommending a move which would make the referendum far harder to pass – all these referendums included “settlers”.

      There’s a narrow Jewish majority in the Golan Heights, and they are increasing much much faster than the Druze and others. There’s a Jewish majority in Jerusalem (and vote returns show a strong right-wing tilt). There are strong reasons to doubt even whether E. Jerusalem Arabs alone would vote in favor (I recall no direct polls in E. Jerusalem, but polls in the Triangle show a 90% majority against moving to the PA).

      +972 should be grateful the referendums allow Israeli Arabs and Jews from the center to vote – the current referendum law de facto only requires about a third of the Jews to vote “aye”. That even this is regarded as impossible is a testament for how far off to the Left these proposals are.

      Reply to Comment
    2. Y.

      P.S. the question of who gets to vote is a bit more complicated than Prof. Gross’s presentation. The entire Nagorno-Karabakh conflict is deadlocked over this, and the intl. community has ignored multiple referenda approving secession from Azerbaijan.

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    3. Re the comments above I just want to note that clearly this short post did not exhuast all the complex issues of geographical and personal boundaries of a referendum. Western Sahara is also a case in point, concerning who should be allowed to vote, with objection from Polisario to allowing people not registered in the area by a certain date to participate. So it’s not clear or accepted that settlers are part of such a vote… My point was that it is not the citizens and residents of the occupying/controling state which get to vote – but rather the ones living in the occupied/non-self-governing/disputed territory. From my perspective settlers who settled in the occupied territory during the period of its occupation contrary to international law should not be allowed to vote in such a referendum, as long as they live there as illegal settlers, even if the country in question annexed the territory. If we were to expand the discussion to West Bank (in relation to referendum in Israel has been proposed before – even if in this law does not apply to it) – than certainly you cannot allow the settlers who live there based on dispossesion of the local population and inequalities to be part of a referendum which be of the local population: this would amount to success of the settlment expansion and annexation policies which international law set to prohibit.
      I do think significant distinctions can be drawn from the participants of Protestants in Ulster etc – because of the specific history of this territory, even if comparsions can be made. And for sure allowing Jewish settlers to participate would be very very different from allowing the English speakers to participate in the Quebec referendum, as we are not talking of occupied or non-self-governing territory. East Timor would be the closest example perhaps, but recall on the other hand that in that case East Timorese living outside the province were also allowed to vote. I am not sure what was the number of settlers and if was a number that could influence the result and what was their status. Will have to check, but as the results clearly shown there was not a significan number of settlers who could “distort” the result.
      In any case clearly the question of who gets to vote and qualifies as a resident of the territory for this purpose can become complicated – it’s not an issue I addressed here. Regarding East Jerusalem, the question arises whether the residents of East Jerusalem can vote on East Jerusalem’s future without regard to the view of the Palestinian population as a whole. If we would assume that they could (and Jerusalem was even legally recognized as “corpus seperatum”), then if the majority of the occupied Palestinian population of East Jerusalem would so chose, they should have the right to unite with Israel, and I am not “worried” from such a result per se as.

      Reply to Comment
    4. Y.

      First, I don’t think “distortion” should play a role here. “You get to vote, as long as you can’t affect the result” being clearly against the entire idea of voting. Here, another precedent is northern Cyprus, where many (most?) of the voters on the Annan Plan referendum were settlers (Wikipedia says that only 38% of the voters were Turkish-Cypriots, the rest being settlers. Granted, it’s not the best source. I should look up a more direct quote).

      As for Jerusalem, your position seems odd. It is weird to ask whether “residents of East Jerusalem can vote on East Jerusalem’s future without regard to the view of the Palestinian population as a whole”. The Israeli population and residents of W. Jerusalem specifically have no links there, I guess?

      Now, if you think of a “corpus seperatum” it would be difficult not to do this for entire Jerusalem if at all. The original partition resolution kept Jerusalem as a separate entity (I recall the residents were to vote in a referendum to which state they belonged a decade afterwards?), and successive UNSC resolutions on Jerusalem did not mention E. Jerusalem separately, but rather the entire city as a unit (see 478 and 476 for example).

      Furthermore, the intl. community has tried very hard to avoid any recognition of even W. Jerusalem as Israel’s capital (this is difficult to chalk to the “occupation” as this behaviour predates 1967). So if there’s any difficulty here regarding views of others, it must center on a referendum which does not include W. Jerusalemites…

      Reply to Comment
    5. Re East Jerusalem – agreed that it would have been all of Jersualem that is corpus seperatum. But since only East Jerusalem is considered occupied territory (indeed I never understood why other countries would not recgnize West Jerusalem as Israel’s capital, but recall that some emabssies were indeed still there until the Israeli Basic Law on Jerusalem) – the status of the two parts are now different. Having said that I think there is no clear cut answer about whether East Jeruslaem Palestinians can should be able to decide their own future regardless of the Palestinian population as a whole.

      As to Cyprus – it’s kind of a different situation to some extent because of this is a peace agreement being brought to approval by all sides, unlike the Israeli bill. Having said that indeed the growing legitmacy granted to Turkish settlers is problematic, in the sense that it upsets the prohibitions in international law on settlements, and I may actually write a seperate post on this soon (in another context of land rights).

      Having said that, again – my post was about how the basic idea should be that the population living in the occupied/non-self-governing territory should be the relevant people to be asked in referendum, not the occupier. How exactly to conduct referendum in such territories, and as noted above what are the personal and territorial boundaries is indeed a complex question. I am willing to agree that perhaps not in all the cases which have some parallels the best solutions were taken, but as the Western Sahara case shows, it is not at all clear that participants of settlers can gain legitmacy, and when it comes to East Timor as I already mentioned, also ones living outside East Timor participated, so even if local settlers particpated, and if we were to make a comparsion to the West Bank (again I am depating from E. Jerusalem to broader context) – I wonder if the Palestinians would have agreed to settlers participating as part of a deal that Palestinian refugees also can participate (and then we’d have to check whether we are talking only 1967 refugees or…).
      By the way since this is not election the notion of “distorting” may be relevant here: it could be that settlers would be allowed to vote if you would assume the occupying power did not make significant demographic changes to the territory and thus their particpation is negligent.

      In short, the road of self-determination is fraught with contradictions, unanswered questions and even what may seem as dead-ends. I do not seek at all to deny that. THe basic question remains whether at the heart of our decision is letting the ones under the foregin control decide, or let the ones controlling them?
      In my humble opinion distoring the referendumg by allowing the occupiers to decide through settlers, is problematic, even if in a different way than allowing the occupiers to vote by themselves.

      The question of which settlments projects get legitimacy that in way that we may want the settlers to be part of the self-determination decision is indeed very complex. I think in long term realities perhaps the existence of equal rights, may confer some stability and legitimacy that changes the pictures that stablizies over time. I think this is far from being the story of the West Bank and/or East Jerusalem. And doubt very much that it is the story of the Golan Heights.

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