New Controversial Laws in Israel: Some Thoughts

The Knesset, Israel’s Parliament has recently approved a series of apparently controversial laws which has provoked some strong opposition. The first one allows small communities in the Negev and Gallilee to refuse a resident permit to people who are “ill-suited to the community’s way of life” or “might harm the community’s fabric”. The second law, which is being called the “Nakba law”, would allow the State to fine state-funded institutions who commemorate the “Nakba” (literally “catastrophe”), the Palestinian day that coincides with Israel’s independence day and  commemorates the loss of their land. The third law would allow courts to revoke someone’s citizenship for certain acts, such as terrorism, treason or collaboration with the enemy in time of war, or “any other act which harms national sovereignty”.

There is no denying that the general political context of the adoption of these laws is less that optimal. The right wing coalition of Netanyahu and Lieberman is playing into the population’s xenophobic and security fears and has been bad news for peace in the middle east since it was elected to power last year. In this context, it is a delicate intellectual exercise to coldly consider the actual content of these laws and try to analyse them in a decontextualised way, but I still want to share some thoughts on two of them, the nationality law and the Nakba law.

In relation to the nationality law, it was strongly denounced and declared to be “racist”, because aimed at the country’s Arab minority. However, in the absence of actual practice of the law, and I insist, independently of the intent of the majority which passed the law, I find this conclusion a bit hasty. For one, if this law is controversial, then it should be controversial in many countries, not just Israel. Indeed, many States have such provisions in their national legislation for such crimes. One could question whether such type of law should exist at all, on the basis that all nationals should be treated the same way, independently of their “origins” (which I would argue), but it is not a specific Israeli debate. Second of all, on the scope of the law, it only “discriminates” against persons having committed a specific crime. But that is how criminal law works. Saying otherwise would be absurd. It would be like saying that the law providing for 30 years in prison for a murderer is discriminatory against murderers… More specifically, saying that the law is “racist”, implies that the law considers that all Arabs are terrorists and traitors. That might be what Lieberman thinks, but that is not what the law says. Therefore, if you accept the principle of that law (which I wouldn’t), its current formulation would seem unproblematic to me.
I would however have one reservation that would need to be verified, because none of the news reports I’ve read give any indication: that of the situation of persons with a single nationality. Indeed, the French law, for example, provides that you cannot revoke the nationality of someone if it would result in them being stateless. This is in application of the international law rules in that respect, more particularly the Convention on the reduction of Statelessness of 1961. Israel has not ratified the Convention, but there could be some argument that its provisions form part of customary law. In this sense, it would be particularly problematic if the law did not provide for an exception in such cases.

In relation of the Nakba law, I must admit that I am of two minds. But first, three points on the law itself.
For one, it is unclear from what I’ve read what the law says exactly. According to wikipedia (I’m sorry for the source, but because I don’t read hebrew, I’m limited to secondary sources which would need to be verified), the law doesn’t actually mentions the Nakba. It allows for the witholding of:

government funding from Arab towns and state-funded organizations or public institutes that participate in “activity that involves the negation of the existence of the State of Israel as the state of the Jewish people; the negation of the state’s democratic character, support for armed struggle or terror acts by an enemy or a terror organization against the State of Israel; incitement to racism, violence and terror and dishonoring the national flag or the national symbol”

Even if it does, and second of all, it is unclear what the “Nakba” specifically commemorates. According to Human Rights Watch, it refers:

 to the historic episode in which hundreds of thousands of Palestinian residents of what is now Israel fled and hundreds of villages were destroyed during the conflict after Israel declared independence in 1948

However, according to other sources, its full name is “Yawm an-Nakba”, the  “day of the catastrophe”, and is commemorated on the same day as Israel’s independence day, in reaction to the specific creation of the State of Israel.

Third of all, the law does not prohibit all commemorations of the Nakba, it prohibits such commemorations by publicly-funded institutions. While the definition is wide-ranging, it is still limited.

With this in mind, a few thoughts. On principle, my natural instinct is in favor of absolute freedom of expression. I argued along those lines in one of my very first posts. I strongly oppose the trend towards the criminalization of free expression, even if it’s offensive, and I am, for example, strongly opposed to laws criminalizing holocaust denial.

But this is where, to come back to the very first point I made, I reach the limits of “decontextualising” the analysis of the law. In a “pacified” society, I can argue that freedom of expression should always prevail, and that everybody should be allowed to express their opinion, even if that opinion mourns the actual creation of the State where he lives. Discussion of the past should be free and unimpeded.
However, Israel is not a pacified society, on either side. Israel still feels threatened in its existence, whether this is in fact a real danger being irrelevant. Palestinians rightly feel that they have been robbed of their nationhood and have suffered 60 years of Israeli occupation, and half-hearted support from neighboring Arab States. The Nakba is not the past, it is the present and its celebration has very actual meaning in the current political context . As the debates on transitional justice, truth, reconciliation and peace have shown in the past decades, there is no simple answer, as some organisations would let have believe, as to how to deal with situations where the social fabric is so torn. Given the fragile balance (or imbalance), I would not have the arrogance to try and impose a theoretically perfect solution (freedom of expression) on Israel. The only option is compromise and some measure of balance.
In this context, I don’t find it that scandalous that a State would frown upon public institutions (I would adopt a more limited definition to cover only State institutions) promoting the commemoration of a day that basically mourns the formal creation of that State. I would not imagine a play in a publicly-funded French school celebrating Petain, and mourning his defeat in 1945 (just to be clear, I take this as an example of an ontological fracture in the nature of the French State, not as a comparison between Petain and the Palestinians). On the other hand, with a broader definition of what the Nakba represents, Israel should try to face its past and acknowledge that its creation, while not being put in doubt, came with serious human rights abuses that still leave open wounds today. This would however require clarity that the celebration of the Nakba does not imply that Israel should not exist as a State today, which is politically and understandably difficult to accept for Israel.

If anybody has any corrections to make on the actual content of the laws, I’d be happy to make the appropriate changes. I look forward to your comments on this complex topic. Those who would be tempted to simplistically put me in the “pro-palestinian” or “pro-israeli” box, based on one or other sentence in my post (biased people generally tend to have a surprisingly accurate capacity for selective reading) are also invited to share their thoughts for comic relief.

9 responses to “New Controversial Laws in Israel: Some Thoughts

  1. I'm not going to put you in any box, but I'm certainly going to disagree with your position on the citizenship law. You attempt to defend it by arguing that it requires proof of a crime, but your own quote is inconsistent with that requirement — citizenship can also be revoked for "any other act which harms national sovereignty." That is very different than revoking citizenship for terrorism, treason, or aiding the enemy.Indeed, the awfulness of the citizenship law becomes immediately apparent in light of your analysis of the Nabka law, which is violated by, inter alia, "activity that involves the negation of the existence of the State of Israel as the state of the Jewish people; the negation of the state's democratic character… and dishonoring the national flag or the national symbol." It certainly seems that, according to Israel, any such acts "harm national security" (indeed, your defense of the Nabka law assumes as much) — in which case violating the Nabka law could easily lead to the loss of citizenship. Do you think that's fair?

  2. Hello Kevin, I appreciate you not putting me in a box and for taking the time to share your thoughts. Just to be clear from the outset, as I say in my post, I have sympathy for neither laws. I was just reacting to the "over-reaction" that I saw in the media about the laws.About the citizenship law, I was puzzled to see it call "racist", when countries such as France, the US and the UK have similar revocation laws. As for the fact that you need proof of a crime, I chose to interpret "any other act" in that way, and you chose not to. This would need to be settled by someone who actually knows Israeli law, and I would indeed prefer a narrower application. But it still doesn't justify the "racist" label. And if you find the law too broad, then you will certainly cringe when you learn that in the UK, "The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good"…As for the Nakba law, I'm afraid I don't quite share your interpretation, but maybe I've got the law wrong. The law is not "violated by, inter alia, activity that…", as you put it. It is violated if a public-funded institution supports such activity. In this sense, the act is not aimed at individuals and is not a criminal law, so the overlap with the citizenship act does not seem that obvious to me. I would say that only the acts mentioned in the Nakba law that are already covered by criminal provisions would give rise to a risk of revocation, the nakba law not changing anything in this sense.At the end of the day, I'm not sure we disagree that much. The main and fundamental difference is that, while I'm willing, in the absence of any practice, to give the laws the benefit of the doubt, whereas you're clearly inclined to interpret them in a worst case scenario. As I acknowledge in my post, you might be right, given the political context of the adoption of the laws, and maybe I'm being stupidly naive. But there is enough to be said about some many obviously problematic laws in Israel (such as the appalling residency permit law I refer to at the beginning of my post), that I'm not sure that playing into the international "over-reaction" in relation to other laws is necessarily a good thing, hence my post.

  3. Dov,As you probably know, the Knesset will almost certainly soon approve a law that criminalizes support of the boycott, divest, sanction (BDS) movement. The rationale of the law is that such support is inimical to Israel's national security. Is it much of a stretch to assume, even if a conviction is required for the citizenship law to take effect, that conviction for supporting BDS could cost the supporter his or her citizenship?

  4. Also, I genuinely have to ask — for what possible reason are you inclined to give Israel the benefit of the doubt concerning these laws, given its past practice (including the residency permit law you mention)?

  5. Kevin, thank you for the information. I was not aware of that other law, and would strongly oppose the application of the citizenship law to such a situation. But more generally, because this was meant to be the main point of my post (if drowned in other considerations), would you agree that it is one thing to be (legitimately) weary of the possible application of a law, and another to criticize the law itself on the face of its drafting. In this sense, while I would not defend the law should it be applied in the way you fear, I still think that in principle, 1) if you're going to challenge this law, you should not target Israel specifically, because, as I mentioned above other countries such as the UK have far more reaching such legislation and 2) there is nothing particularly "racist" or discrimatory in the law itself, as opposed to a law that would have said, for example, that "all arabs who commit a crime will be stripped of their nationality".As to your second point, part of my answer is in what I said before. I distinguish, at least methodologically, the content of the law, from its application. In this sense, I give the benefit of the doubt within reason. This is why I think its important to say that there is nothing shocking per se in the citizenship law in comparison to other similar laws that exist in other countries. More importantly, the benefit of the doubt stems from the more complex reality of Israeli society that your view would suggest. This has two consequences which warrant my threading more carefully: 1) there is no monolithic "Israel" that I would trust or not trust. yes, Lieberman is racist and nationalistic. But not all Israelis are, more particularly the judges. Israeli courts have shown their capacity in the past to apply potentially tricky legislation in a reasonable way. 2) you view implies systematicity of Israel violating rights of its Arab citizens. I would not give much benefit of the doubt in relation to legislation affecting the occupied territories in light of past practice, but I think the situation is more complex for Arab citizens. Yes, there is systematic discrimination in certain areas, but on the other hand, not all laws are designed to curtail these rights and the (imperfect) extent of equal rights should at least be a de minimis indication that there is no systematic intention to diminish these rights.In conclusion, I do believe that we don't disagree that much. I have no sympathy with the sponsors of these laws, don't like the laws on principle, and would even more strongly oppose them should they be applied as you interpret them. But methodologically, I think it's important not to be caricatural and be more precise and systematic in the analysis (within the limits of blogging). Especially as an academic, rather than an activist, which I am not.

  6. Jacobs,I am lay when it comes to law, but I do enjoy debates/discussion relating to same. My main concern however, is your attempt to compare the "Nakba" law to practices in UK, France and America. These countries were not created the way Israel did. They do not ( as compared to Israel) systematic discriminatory application of their laws in relation to minority groups in the country. some memories cannot just erased no matter how you attempt to criminalize them. For example, the holocaust has become an empathetic narrative of the Jews and the State of Israel. Why can't the "Nakba"?

  7. Anonymous, three quick points.1) I was comparing the citizenship law with comparable law in other countries, not the Nakba law.2) On your historical point, most States were actually created by war and oppression. France basically spent hundreds of years erasing local particularities, sometimes in bloodbath and always in a coercitive way. War and violence might not be something that we should normatively adhere to, but we can't ignore that historically, both of these things have always been the tools of choice in the creation and imposition of a national identity.3)I take your point on the shoah, but you have to take into account the context. Yes, the shoah is part of the narrative of the creation of Israel. But the Nakba isn't, it is part of another conflicting narrative, which remains painfully vivid in today's political context. As I said in my post, while I disagree with the law on principle, I can see why Israel as a State, might not like to finance the celebration of an event that basically wishes that Israel had not been created. It is difficult to reconcile these two narratives.

  8. Just for the record..it is called Yawm not Yawn (Yawm meaning day). While i agree with you that there would be a play in a publicly-funded French school celebrating Petain, and mourning his defeat in 1945, i wonder if it would be criminalized by law should there be such a play? You also say that we should take the context into consideration, and the fact of the matter is that the laws were suggested by right wing parties especially Israel Beituna which has not kepts its vies on arabs a secret..so yes context is important even when analyzing these laws. Haaretz recently published an article which indicated that the polls in Israel suggest that more youth are leaning towards right wing ideas..we should keep this in mind when analyzing laws such as those you have discussed above

  9. Thank you Rouba for pointing out my mistake on the spelling, I've duly corrected it.As for the context, You are perfectly right to point out the delicate political situation in Israel, as I did in my post. I share your concerns about the increasing right-ring tendencies, especially among the youth. This is why I don't claim to have a definitive answer. As I said, on principle, I'm strongly opposed to the law. And I know the opinions of the sponsors of the law. But as I was telling Kevin John Heller, I still have this naive hope that the intent of the law doesn't mean it will be applied in an racist and unreasonable way by the judges.As for the comparison to France, things are obviously more complicated in Israel than in France, because it is a considerably less fractured society and such a play would probably not be criminalised… but neither would it be proposed in the first place…

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