Basic Law or Basically a Disaster? Israel’s Nation-state Law Controversy Explained

Prime Minister Benjamin Netanyahu is refusing to amend the legislation, which opponents say undermines Israel’s democracy and has driven the normally loyal Druze community on to the streets in protest

Israeli Druze participating in the rally against Israel's Jewish nation-state law, Tel Aviv, August 4, 2018.
Sebastian Scheiner/AP

The statements and accusations flying around about the new Basic Law on Israel as the Nation-State of the Jewish People have been confusing and contradictory to outsiders, and even to Israelis.

In an odd twist, the proponents of the law – those who celebrated its passage in the wee hours of July 19 – are now saying it changes nothing. And its angry, protesting opponents contend that it changes everything and undermines the foundations of Israel’s democracy.

Tens of thousands of Israelis demonstrated last Saturday night in Tel Aviv’s Rabin Square, in a rally led by Israel’s Druze citizens. This is the community that has felt most betrayed by the law, believing that it turns all of the country’s non-Jews into second-class citizens.

The legislation, first conceived and proposed about seven years ago, is meant to establish and enshrine Israel’s Jewish national values in law. It will have no immediate impact; there is nothing in the law that has any practical application. But its symbolic importance has already been devastating.

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That importance centers on the fact that the new legislation is a Basic Law. Israel’s lack of a constitution has led to the creation of a series of such laws: piecemeal measures that the courts are meant to recognize as articulating the underlying principles of the state, and might someday be incorporated into an actual constitution.

This is why the nation-state law’s long-term impact could ultimately prove significant. That, of course, will depend on the nature of future Israeli governments, how they choose to incorporate the country’s now explicit Jewish national and religious character into government policy, and whether the courts use the law to uphold such policies if challenged.

What is the law exactly?

Most of its elements already existed in Israeli law. They are simply being emphasized in the new law and given more weight by being a Basic Law.

Prime Minister Benjamin Netanyahu pushed hard to pass the bill, seeing its enshrinement of “Israel as the nation-state of the Jewish people” as part of his political legacy – and with an eye toward upcoming elections.

The Druze community and other Israelis attending a rally protesting the Jewish nation-state law, Tel Aviv, August 4, 2018.
\ CORINNA KERN/ REUTERS

But beyond politics, the law has diplomatic importance as well. Israeli officials, including Netanyahu, have long demanded that the Palestinians acknowledge Israel’s right to exist as a Jewish state as a condition in peace negotiations. How can Israel demand this of others, it was asked, if it did not do so itself?

A key goal for Netanyahu and the right-wing camp in passing the law is to act as a counterbalance to the Basic Law on Human Dignity and Liberty (1992) in court rulings. The nation-state law, they contend, will force judges to consider Israel’s Jewish character, as well as individual rights and freedoms, in future decisions. Critics say what is omitted is just as significant as what is included in the new law: the words “democracy” and “equality” do not appear.

An earlier, more extreme version of the bill was even more explicit in prioritizing Jewish national values over democratic ones, including legalizing the creation of Jewish-only communities. Still, even the current language could be used to justify planning that benefits only the Jewish population and discriminates against non-Jews, based on the nation-state law’s provision that the state “views the development of Jewish settlement as a national value and will work to encourage and advance its establishment and consolidation.”

Why are the Druze so upset by the law?

A unique, Arabic-speaking religious and ethnic group, the Druze community in Israel (excepting those in the Golan Heights) has long identified openly and proudly with the state and its institutions (unlike most other minorities in the state).

Druze men are subject to the draft. Indeed, the community’s soldiers have long been recognized for their service and many have served in high ranks in the Israel Defense Forces. They are also represented in the leadership of centrist, and even right-wing, political parties. Druze lawmakers, reserve officers and numerous members of the community have loudly and publicly protested the law as an insult to their service and dedication to the country, challenging their loyalty.

That message was hammered home by Saturday’s demonstration, with slogans proclaiming “If we are brothers, we must be equals.” The rally drew former members of the defense establishment, including ex-IDF Chief of Staff Gabi Ashkenazi, former Mossad Director Tamir Pardo and ex-Shin Bet security service heads Yuval Diskin and Ami Ayalon.

Three Druze lawmakers have filed a petition in the High Court of Justice, calling the legislation an “extreme” act that discriminates against the country’s minorities. The petitioners asked the court to annul the law or rule out parts of it on the grounds of infringement on basic rights, including the right to equality. They said minorities have no status in the law, essentially exiling the Druze and other communities despite their service and loyalty to the state, Akram Hasoon (Kulanu), Saleh Saad (Zionist Union) and Hamad Amar (Yisrael Beiteinu) wrote.

Three subsequent petitions have been filed against the nation-state law, but Justice Minister Ayelet Shaked warned this week of no less than an "earthquke" if the High court moves to nix it

What has been the response from the Netanyahu government? Will the law be changed?

The outcry has seemingly swayed some ministers who actively supported and voted for the law. Education Minister Naftali Bennett said after the initial outcry that “a specific flaw arises regarding our Druze brothers, and that must be amended.”

Finance Minister Moshe Kahlon also admitted mistakes were made when approving the law, saying it should be amended. “The enactment of the nation-state law was done hastily,” he told Army Radio two weeks ago. “We were wrong and we need to fix it.”

Netanyahu has come out strongly against any changes to the law, though, presumably assuming that revisiting the wording would be equivalent to opening a Pandora’s Box, giving opponents a chance to kill it entirely.

An attempt at reconciliation between Netanyahu and Druze leaders prior to Saturday’s protest was a huge failure, with the prime minister angrily cutting the meeting short in response to an online reference to apartheid made by a former Druze officer.

At the weekly cabinet meeting on Sunday, Netanyahu again defended the legislation, saying it was necessary “to fortify Israel’s status as a Jewish state.” He later claimed it would prevent unification of Palestinian families and block entry of “infiltrators.”

His only concession to the storm was the formation of a special ministerial committee to resolve the matter through the creation of additional legislation. However, he had already presented this idea to Druze community leaders and they rejected it as insufficient, demanding an amendment to the nation-state law that addressed all minorities in Israel.

What does the Israeli public think of the law?

Polling shows that while the majority of right-wing voters support the law, there is, unsurprisingly, wall-to-wall opposition to it in the Arab community.

The most cited poll, published in Walla News at the end of July, showed 58 percent of Israelis supporting the law. Those who identified as centrists politically were split down the middle.

However, in the monthly Peace Index poll conducted by the Israel Democracy Institute, only a minority – 45 percent – said they were either “sure” or “thought” there was a need for the law; 47 percent said there was no need and 62 percent said it should have included a reference to equality.

Public opinion analyst Dahlia Scheindlin wrote that Netanyahu should beware the perceived damage to Israel’s social cohesion and its international image as a result of the law, even in the eyes of his loyalists.

She ran focus groups among self-defined “moderate-right” Israeli Jews and those who called themselves the “center-leaning right,” and was “struck – and frankly surprised – to find that hardly anyone had a good word to say about the law.”

She reported that supporters of the current government described the law as “reckless, rushed, politicized, and unnecessary,” and that it “just creates a provocation.”

When the moderator proceeded to ask the group if they thought there would be consequences, a man replied, “Yes of course. From abroad they’ll look at us as racists.”