‘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.”

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.”