Analysis

In Grand Debut, Israel's Nation-state Law Reveals Its Ugly True Colors

The court explained its decision only on the basis of the victim’s Jewish identity. What would happen if an Arab Palestinian citizen of Israel were wounded in the same fashion?

Protest against the nation-state law in Tel Aviv, September 4, 2018.
Moti Milrod

The deputy president of the Jerusalem District Court, Judge Moshe Drori, inaugurated the Basic Law on Israel as the Nation-State of the Jewish People this week, issuing the first verdict based on it. He relied on one of its provisions to justify imposing punitive damages of one million shekels ($280,000) out of the total 5.4 million ($1.5 million) on Hamas for the severe post-traumatic stress suffered by a Jewish Israeli wounded in a terror attack in Tel Aviv in 1998.

Article 6(a) of the Basic Law says: “The State shall strive to ensure the safety of members of the Jewish People and of its citizens, who are in trouble and in captivity, due to their Jewishness or due to their citizenship.” Drori saw the terror attack as “trouble” of the sort referred to in that article, and punitive damages (which are rare in Israeli civil cases) as a way to ensure the safety of members of the Jewish people.

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This use of the nation-state law shows the law’s potential to produce unforeseen consequences, some of which will be far-reaching, because, as the court said, it applies retroactively (in this case, to an event that happened 20 years ago) to all government agencies. Who ever imagined this outcome of the law?

It also shows that reliance on this Basic Law is liable to lead to shortcuts in explaining judicial decisions, as exemplified by this ruling. Drori didn’t discuss the question of whether this provision even applies within Israel’s sovereign territory; he saw this as so self-evident that it didn’t need stating. He also didn’t provide an in-depth explanation of why he imposed punitive damages in this case. 

“To encourage a Jew wounded in a terror attack,” as Drori wrote, is a weak argument. And if the purpose is deterrence, it’s hard to believe that adding one million shekels in compensation to the 4.4 million awarded already will influence Hamas in the slightest, unless we adopt the anti-Semitic claim that Semitic peoples are only moved when they’re hit in the pocketbook.

The court relied on the above-mentioned provision in its totality, but it explained its decision only on the basis of the victim’s Jewish identity. This ethno-particularistic justification obviously raises a question: What would happen if an Arab Palestinian citizen of Israel were wounded in the same fashion?

Any constitutional interpretation worthy of the name should result in the same law for the Palestinian and the Jew, because they are both Israeli citizens. Such an interpretation would rest on Israel’s oldest, most fundamental and most eternal values, those that were cited in the Declaration of Independence, in contrast to the evil but ephemeral spirit of racist, chauvinist politics that currently fills the air. Even if terror attacks are mainly intended to target Jews, anyone who uses indiscriminate terror in Israel knows that they are attacking Israeli citizens, including non-Jewish ones, simply because they are Israelis.

In this sense, too, Jewish and Arab citizens of Israel aren’t enemies. They share the common fate of being subject to murderous terror attacks. This is the message that should have emerged from the Jerusalem court. But in a reality in which citizenship suffers from a fundamental weakness, and the political faction that calls itself “the national camp” constantly works to weaken it further as it did with the nation-state law, it’s no surprise that the voice of citizenship goes went unheard.

And as long as we're on the issue of equality, the difference in the way our legal system treats Arab and Jewish terror must be pointed out. Any support for Arab terror, for armed struggle by a terrorist organization against the state, can make a party or individual be disqualified from running for Knesset (or ousted from the Knesset after being legally elected). In contrast, support for terror against the Arab minority has no effect on the right to be elected to or serve in the Knesset. And the barbaric tactic of house demolitions is also reserved exclusively for Arab terrorists and their families.

Even worse, society’s attitudes toward Jewish and Arab terrorists differ drastically. Jewish terrorists, like those who were part of what was called the Jewish Underground in the 1980s, remain beloved sons of the nation. Arab terrorists are considered human animals, or inhuman ones. And this has nothing to do with the degree of danger posed by these two types of terror, since no act of terror has ever been more dangerous to the state’s existence than the conspiracy to blow up Jerusalem’s Al-Aqsa Mosque.

Terror against people who aren’t involved in fighting deserves moral condemnation; it’s a tactic so unjust it cries out to heaven, regardless of its purpose. But when the same people who rage against Arab terror embrace Jewish terrorists, their outrage cannot be considered moral.