To Whom Does the Referendum Law Refer?

In a departure from Israel's republican form of government, a new Basic Law gives the Israeli public the direct authority to decline a peace deal, but not to block settlement construction.

Aeyal Gross
Aeyal Gross
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Aeyal Gross
Aeyal Gross

The new Basic Law requiring a national referendum for any Israeli land concessions is one of roughly a dozen Basic Laws that have been legislated since 1950, when it was decided to break Israel’s constitution into chapters. The constitution was never completed, however, and we’re still waiting for a comprehensive Basic Law on human rights that would make up for what’s lacking in the current Basic Law: Human Dignity and Liberty.

Instead, the Knesset decided to create a Basic Law requiring a direct popular vote to approve a peace agreement, or any government decision to give up territory under Israeli sovereignty or jurisdiction, unless it was approved by a supermajority of at least 80 lawmakers. The law clearly refers to the possibility of returning land in East Jerusalem or the Golan Heights, where Israeli sovereignty and law apply, along with any other territory within the Green Line.

The new law would not apply to land in the West Bank, as Israel has never annexed it and its laws do not apply there.

Similar requirements were already included in a law that was passed in 2010, but only as a regular law, and it seems that the current motivation to fortify that legislation stems from a pending appeal in the Supreme Court challenging its constitutionality. With a Basic Law in place, detractors would find it hard to mount a judicial challenge and say the Knesset or the cabinet is overreaching.

The very notion of a national referendum contradicts the form of government in Israel, which is based on the principle of the people electing representatives to make decisions for them. It could be argued that holding a direct vote on any issue only serves to strengthen democracy.

But it begs the question: Why hold a referendum specifically for territorial concession? Israeli law can be made to apply to specific territories by government decree (as was done in the case East Jerusalem) or through Knesset legislation (as was done in the case of the Golan Heights); building settlements does not require a national referendum, nor does refusing a possible peace deal. But the opposite decisions - evacuating settlements, signing a peace deal - require the direct approval of a majority of the public.

That’s why this Basic Law is biased, and actually harms the principles of democracy – it fortifies a specific political position and requires a national referendum to change it. The opposing political stance has no such backing. The purpose behind the law is to make future peace negotiations more difficult.

Perhaps a national referendum would actually grant legitimacy to a future agreement and allow political leaders to make widespread concessions they would have not otherwise considered. But the bottom line is that this law is designed to act as another obstacle on the road to peace.

But the biggest drawback to the referendum law is that it completely overlooks exactly the people who should be asked about the future of any land – the people who live on it, and especially those who lived on it before it had been conquered.

A national referendum is a legitimate tool for clearing up questions of self-determination, as it was used in East Timor, which became an independent and free from Indonesian occupation. Referendums have also been used in different democracies by sections of the population weighing self-determination, such as when Quebec residents voted to remain part of Canada; Scotland will hold a referendum this year on whether to remain part of the United Kingdom; Northern Ireland had held a similar vote, though in that case there was a referendum in Ireland as well due to constitutional requirement.

While a referendum is typically meant to express a people’s desire for self-determination, Israel’s new Basic Law stipulates that decisions on the future of contested territories will not be made by the people who live there, but rather by citizens of the occupying power.

The situation will only get worse should this law ever apply to the West Bank as well, and such suggestions have already been made.

Therefore, what has been presented as a boost to the democratic process might become another milestone on the road to demolishing Israeli democracy altogether. Even if a majority of Israeli citizens decide to keep controlling a territory, this will not be a democratic decision, as it is the people who live there – the conquered population – who should make decisions about their future.

IllustrationCredit: Ilya Melnikov
Cabinet ministers in Knesset during the referendum vote on Wednesday.Credit: Emil Salman

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