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'When the constitution becomes racist, it’s difficult to define what racism is’

One year ago, Israel passed a constitutional amendment declaring that Israel belongs only to its Jewish citizens. The head of Israel’s premier Palestinian rights group discusses what has changed in Israeli courts, but also overseas. ‘The debate soon will be whether Israel is apartheid.’

Lawyer Hassan Jabareen attends a meeting at the Knesset on December 19, 2012. (Miriam Alster/Flash90)

Lawyer Hassan Jabareen attends a meeting at the Knesset on December 19, 2012. (Miriam Alster/Flash90)

In the year since the Israeli parliament passed the Jewish Nation-State Law, the equivalent of a constitutional amendment that declares Israel to be the exclusive nation-state of the Jewish people and demotes the status of Arabic, not a whole lot has changed.

That can mostly be explained by how new the law still is, and the political instability that has paralyzed policy making in Israel over the past year. But the more obvious explanation is that the law only codified an existing reality of supremacy, discrimination, exclusivity, and two-tiered citizenship that has prevailed here since the day Israel was born.

What the law has changed, is the essence of how people understand that reality — from Palestinian citizens of Israel to diplomats, and, of course, judges.

Palestinian and Israeli politicians, activists, and thinkers have long engaged in a debate about Israel’s Jewish identity, and whether the country can define itself as Jewish and still be democratic. This law cuts straight through that debate, says Hassan Jabareen, founder and director of Adalah, a legal organization that focuses on Palestinian minority rights in Israel.

Speaking in his office in a stone building in Haifa, wearing his signature flat cap, Jabareen explains why that is a positive development. “Soon, the debate in the world won’t be whether Jewish and democratic goes together or not; the debate soon will be whether Israel is apartheid.”

Jewish and Palestinian citizens of Israel at a protest against the Jewish Nation-State Law in Tel Aviv’s Rabin Square, August 11, 2018. (Tomer Neuberg/Flash90)

Jewish and Palestinian citizens of Israel at a protest against the Jewish Nation-State Law in Tel Aviv’s Rabin Square, August 11, 2018. (Tomer Neuberg/Flash90)

The opening three clauses of the Jewish Nation-State Law proclaim: the Jewish people’s connection to the Land of Israel, a religious and ideological term referring to an area far greater than Israel’s de facto borders; the Jewish people’s right to self-determination in Israel; and the exclusivity of that right.

It makes no mention of equality for the one-in-five citizens of Israel who are Palestinian. More left-leaning Zionist Israelis have made a push over the past year, primarily in response to objections by Druze citizens, to include a clause in the law guaranteeing equality for all citizens, Jewish or not.

Even that would not be enough, Jabareen says, for as long as the group rights of Jewish citizens are constitutionally enshrined as the only legitimate rights, “you cannot ask to be treated equally before the law when you are not Jewish.”

The change is evident not only among citizens of Israel, but also in the international community. In the past, Jabreen says, it was challenging to convey why defining Israel as a Jewish state is inherently discriminatory toward its Palestinian citizens.

“Now, the basic law makes it easy,” he says. When foreign diplomats and politicians read the law, particularly those from Europe or the United States, “immediately in their consciousness comes ‘we the white people of America that justified slavery.’ You know, ‘we the white European Christian people who justified anti-Semitism.’” In closed conversations, Jabreen says, European diplomats have told him they believe “this law carries many features of apartheid.”

Palestinian women walk on the Palestinian side of Route 4370, known as the 'apartheid road,' just east of Jerusalem, West Bank. (Oren Ziv/Activestills.org)

Palestinian women walk on the Palestinian side of Route 4370, known as the ‘apartheid road,’ just east of Jerusalem, West Bank. (Oren Ziv/Activestills.org)

Of course, a constitutional amendment’s biggest impact will always be, by design, in the courts. And while the courts haven’t yet applied the Jewish Nation-State Law positively, Jabareen says he’s seen it have an effect — in the spirit of the law.

“The spirit of the law is something that can affect the politics, the philosophy, and the law in various ways,” adds Jabareen. “You won’t find, now, a decision of the court that will say that the Arabic language is an official language. You won’t find a decision that says that the state is a state of all its citizens, and you won’t find a decision that will say that the West Bank is occupied territory, because it contradicts the spirit of the law.”

That the law has brought in a new legal era is also reflected in court deliberations and explanations in judgments that are being handed down, he says, citing a recent case the organization brought against the northern Israeli city of Afula. The city’s new mayor, who had vowed to act against what he described as the “conquest of parks” by non-residents — clearly understood to mean Arabs — started turning away outsiders.

Shortly thereafter, one of Adalah’s staff attorneys, Nareman Shehadeh-Zoabi, was refused entry to a park in the city along with her infant son. Adalah took the city to court, challenging the law on the grounds that it is discriminatory. The court ruled against the city, and Israel’s attorney general called the policy illegal.

Speaking in the cadence of a passionate university professor, Jabareen gets out of his chair and starts pacing around his office as he explains that the court never actually ruled whether Afula’s policy was discriminatory, focusing only on narrower matters of administrative law.

The court preferred to keep racism out of the discussion because “in the spirit of the Nation-State Law, it’s very difficult to conceptualize what racism is,” says Jabareen.

“When the law legitimizes racism, or the law legitimizes racist acts, it will be difficult to define the limits of racism,” he adds. “In a racist country, when the constitution itself becomes racist, it’s difficult to define what racism is.”

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There are currently 14 petitions challenging the Jewish Nation-State Law pending before Israel’s High Court of Justice, including one filed by Adalah. The hearings have been delayed thus far because of two rounds of elections, and nobody is discounting the immense political pressure the courts have been under in recent years.

Less than a month after the law passed last year, then Justice Minister Ayelet Shaked warned that if the High Court struck down the law, “such a move would cause an earthquake between different authorities.” Numerous efforts have been made in recent years to strip the High Court of its powers of judicial review, effectively removing any checks and balances from the Israeli system of government.

If the court does not strike down the law, Jabareen says, his organization is considering turning to international bodies. It would be “very, very significant” to have the ICJ issue an advisory opinion on whether the Jewish Nation-State Law is racist, he says, although it’s not clear how that could happen considering that only UN bodies can request such opinions.

Whether it’s struck down or not, Jabareen believes the law has heralded a political change that there is no turning back from. In this new political order, he says, “the concept of partitioning is dead.”

Palestinians cross the Qalandiya checkpoint, outside of the West Bank city of Ramallah, as they head to Al-Aqsa mosque compound in Jerusalem's Old City on June 9, 2017 (Photo by Flash90).

Palestinians cross the Qalandiya checkpoint, outside of the West Bank city of Ramallah, as they head to Al-Aqsa mosque compound in Jerusalem’s Old City on June 9, 2017 (Photo by Flash90).

While the Zionist movement has, since its inception, aspired toward Jewish settlement of the land from the Jordan to the sea, the prevailing narrative among liberal Zionists since 1967 has been the need to secure a Jewish majority within the Green Line. The Nation-State Law now erases the Green Line, says Jabareen, and extends Israel’s sovereignty to territories it occupied. It bases the Jewish claim to this land on a historic right, not on demography.

Both are discriminatory models of citizenship, emphasizes Jabareen, but this means that there is no longer a difference between Jewish citizens in Haifa and Jewish settlers in Hebron. “This is the most important point, and the only point, that makes the Nation-State Law different than the definition of Israel as a Jewish and democratic state” as specified by the Declaration of Independence, he says.

But when Jabareen brings up partition, he means more than just the glaring impossibility of dividing the land; he is also talking about the irreversible change in Palestinian political consciousness.

During the Oslo process, the first order of business for Israeli and Palestinian leaderships was how to partition the land – how to achieve two states for two peoples. Palestinian politicians sacrificed rights for what they were convinced at the time would bring them closer to realizing statehood.

“The Nation-State Law must convince the PLO and all the Palestinians, that first you have to speak about your rights, and then about statehood,” he says. “First peoplehood, then statehood.”

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    1. itshak Gordine

      This constitution is by no means racist. She confirms what everyone knew. Israel is the state of the Jewish people. Minorities (law-abiding) will be well treated. Many states in the world have this type of constitution. It remains, however, through the throats of those who dream of Israel’s demise as the only Jewish state in the world. There are unfortunately many people of this kind, even within the Jewish people. The Sages of Israel know this kind of sickly behavior and have taught us to deal with it.

      Reply to Comment
      • Ben

        Spoken like a true cult follower. In all of Itshak Gordine Halevy’s responses one detects an attitude that free thinking, really any challenge to the radical nationalist-religious rabbis’ line is like a fatal disease, against which one has to be inoculated.

        “Many states in the world have this type of constitution.”

        Who? Uganda? No they don’t. Name one. Be specific. Spell it out.

        “Minorities (law-abiding) will be well treated.”

        That same old creepy Orwellian line. But Halevy can’t explain glaring facts that show they have not and will not be well treated. Such as not one new community for Palestinian citizens of Israel has been built since the establishment of the state. While several hundreds have been built for Jews. Arab citizens of Israel are grossly discriminated against every which way possible in regards to land, housing and resources. These are not isolated instances of racism. It is systematic and structural.

        Reply to Comment
    2. Firentis

      The article admits the law changed nothing. Nor did the law have any impact on whether Israel can be both Jewish and democratic. Nor has the law been used in any legal rulings, which you know, makes sense, because as the article admits the law changed nothing. Even the ‘demotion’ of the Arabic language is declaratory at best since the same law talks about maintaining the same use of the language as before the law, ie, changing nothing.

      But the law has had a major impact on the perception of Israel? Apparently some European diplomats who don’t mind having ‘closed conversations’ with the director of an anti-Israel organization have told him so. One wonders about the political proclivities of said European diplomats. And have you actually met Europeans before? Even the supposed statement attributed to them sounds like the kind of wishy-washy nonsense a European diplomat might say when he wants to avoid conflict when dealing with someone with strong convictions on a matter.

      The courts have rejected a discriminatory law against Arab citizens in the case of the park in Afula. Somehow this still annoys the esteemed professor. Because the spirit of this ‘racist’ law has caused the court to prevent discrimination against Arabs? Where is the logic? Come on. Is it really so hard to string together a logical anti-Israel propaganda piece?

      And then we proceed to the next masterpiece of logic. A law that defines Israel as an expression of Jewish self-determination based on the historical connection of Jews to the whole land of Israel somehow prevents partition? Brilliant. Presumably when the Palestinians declare that they have a connection to the whole land of Palestine that means they are no longer capable of partition.

      Where does this law ‘erase’ the green line and extend Israeli sovereignty to the West Bank? What? Where does it do that? What nonsense is this? Is there an exception to having to be truthful and logical when it comes to dealing with things said by anti-Israel activists?

      This law bases the rights of Jews to this land on a historic right to it? Well that is certainly a refreshing new claim by the Jews. Why didn’t the Jews think of this claim before this law? Amazing. Huge change here. Breaking news type stuff. Call the networks.

      Either the professor is a moron or the writer didn’t understand what he was saying. But this article is the kind of low quality nonsense which only the most ardent and brainless supporter of anything pro-Palestinian will find any logic in.

      Reply to Comment
      • Ben

        Absolutely none of this holds up. It’s saying “So what If we passed a law? Law shmaw. We don’t really mean it. It’s just a little tiny basic law that we promise, cross our hearts, boy scouts’ honor, we won’t ever really use because we have such a great track record of not favoring Jews over other citizens.”

        Jabareen’s critique of the Afula issue
        is sophisticated and entirely cogent. It is actually funny to watch someone cavalierly and with remarkable superficiality dismiss a blatantly discriminatory law as mere meaningless “declaratory language” — and this against a massive history of actual discrimination — and then tell a sophisticated, accomplished legal expert that he is a “moron.” The arrogance of the radical nationalists of the Israeli far right knows no bounds.

        And it’s coupled to the usual disdainful fabrications about Europeans liberals. Gotta have that Euro-boogeyman “interfering with our internal politics” trope going all the time. The “enemies operating from the inside against us” fascist trope. To demonize and to rally the masses.

        “This law bases the rights of Jews to this land on a historic right to it?…Breaking news type stuff. Call the networks.”

        This is an attempt to normalize Jewish radical nationalism.

        “One wonders about the political proclivities of said European diplomats.”

        Hmmm…might it be ordinary European post-war liberalism? What a shocker. Breaking news. Call the networks and get the spin merchants ready with the standard “anti-Semitism” charge.

        Reply to Comment
        • Firentis

          The courts ruling against discrimination in Afula is clearly and obviously proof that the Nation State Law is discriminatory has got to be one of the dumbest takes I have heard in a while.

          Anyone that uses this kind of logic is a moron.

          Reply to Comment
          • Ben

            @Firentis: Since Hassan Jabareen didn’t argue that, then I guess that makes him not a moron. But it does make you dishonest. Next time try addressing what he said and not a straw man argument.

            Reply to Comment
      • Ben

        “Where does this law ‘erase’ the green line and extend Israeli sovereignty to the West Bank [“to territories it occupied”]? What? Where does it do that?”

        Where? In 1A, 1C, and 7A, taken together.
        Here:

        1 — Basic principles
        A. The land of Israel is the historical homeland of the Jewish people, in which the State of Israel was established.
        C. The right to exercise national self-determination in the State of Israel is unique to the Jewish people.
        7 — Jewish settlement
        A. The state views the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation.

        Reply to Comment
        • Firentis

          Are you capable of reading? I am having my doubts.

          A. The Land of Israel is the historical homeland of the Jewish people, in which the State of Israel was established.
          C. The right to exercise national self-determination in the State of Israel is unique to the Jewish people.

          A. says the State of Israel was established in the Land of Israel.
          C. says that the right to national self-determination is unique to the Jewish people in the State of Israel

          Neither of these statements goes so much as to suggest that the borders of the State of Israel correspond to the Land of Israel, nor do they, even were you to include 7A, suggest that partition isn’t doable, nor do they suggest in any way that Israel has annexed or is planning to annex the rest of the territory of the Land of Israel.

          Reply to Comment
          • Ben

            “even were you to include 7A”

            But I *did* include 7A. And you skirted the issue.
            1A, 1C, and 7A taken together do indeed strongly suggest all the things you insist they do not. It is my turn to suggest that only a “moron” would miss this. Or someone pretending to be a moron. Firentis, you come across as a not-so-slick defense attorney playing word games and putting words in people’s mouths. I think people see through this.

            Reply to Comment
    3. what makes you think you know the truth. and please don’t thank me. A thank you from a narrow-minded ahistoric ethnocentric irredentist palestinian is not appreciated; you are an enemy and will be as long as you think you have a monopoly on the truth!

      Reply to Comment