Abstract
When it is claimed that Israel (including the Palestinian territories it controls) is an apartheid state (see Wintemute, 2017: 91, n. 10), a common response is that this cannot be true because the minority among Palestinians who are citizens of Israel have equal rights. Mazen Masri’s excellent book convincingly demonstrates that this response is inaccurate with regard to Israeli constitutional law, especially as this body of law affects the political participation of Palestinian-Israelis.
Masri starts with a striking illustration of the problem his book addresses (p. 1): two Bedouin villages inside 1949–1967 Israel, one designated for demolition to make way for housing for Jewish-Israelis, the other designated for demolition to make way for a Jewish National Fund forest (and in fact demolished and rebuilt 99 times), even though the residents are theoretically equal citizens of Israel according to the case law of the Supreme Court of Israel. Masri asks (p. 2): ‘How can the law…displace one group of people, grant favourable land rights to others, and still be seen as…fulfilling the requirements of equality among citizens which is at the heart of democracy?’ This causes him to interrogate Israel’s definition as a ‘Jewish and democratic state’, found in two Knesset acts with constitutional status (the 1992 Basic Law: Human Dignity and Freedom and the 1994 Basic Law: Freedom of Occupation), and the potential contradiction between ‘Jewish’ and ‘democratic’ in a state with a large non-Jewish minority. His focus (p. 6) is the material level (allocation of political power and rights) rather than the symbolic level (flag, anthem, language rights), secular law rather than religion, and 1949–1967 Israel rather than the Occupied Palestinian Territory.
Masri begins (pp. 7–8) by noting that, in Israel, it is not clear who ‘the People’ are who have consented to governmental power through the constitution: Are they all citizens of Israel (Jewish, Palestinian, or other), all Jewish citizens of Israel, or the Jewish people (all ethnically Jewish persons around the world, whether they are already citizens of Israel or are eligible for future Israeli citizenship)? In addressing this question of constitutional theory, he adopts (pp. 15–16) as the relevant political context ‘settler-colonialism’, with its ‘structure of privilege’ for the settler population, and its ‘logic of elimination’ for the indigenous population. Although (pp. 18–20) ‘what happened in…historic Palestine in the past hundred years fits the definition of settler-colonialism as theorised by…Patrick Wolfe or James Tulley’, he takes this as a premise and does not seek to prove it. Instead, he focuses on ‘how settler-colonialism shapes the development of Israeli constitutional law’, and on how it is a helpful lens ‘for understanding the logic behind many laws and policies in Israel’. He argues (p. 21) that ‘the Jewish and democratic definition – despite the right of the Palestinian citizens to vote […] – means, in theory and in practice, that in the Israeli constitutional order sovereignty and constituent power are exclusively concentrated in the hands of the Jewish citizens’, in other words, ‘the People…does not include all citizens”. “[T]his finding has serious implications for…the extent to which Israel can truly be seen as a democracy’ (p. 23). The common thread in Chapters 2 to 7 is the role of settler-colonialism in the dynamics of the nominal inclusion of the Palestinian minority in the People, alongside their material and effective exclusion from the People.
Chapter 2 examines six theoretical approaches to the tension between ‘Jewish’ and ‘democratic’: (i) the ultra-nationalist (pp. 26–27, Palestinians in Israel are ‘temporary residents’ or ‘lodgers not owners’, and ideally should be expelled); (ii) the nationalist liberal-nationalist (pp. 28–29, Israel is ‘the nation-state of the Jewish people’, not a ‘state of all its citizens’; p. 34, the non-Jewish minority is tolerated but ‘is seen as a threat and…should be kept as a minority to preserve the Jewish character of the state’), emphasis in original; (iii) the pragmatic liberal-nationalist (p. 37, a ‘Jewish and democratic state’ is a ‘state of all its citizens’, as long as the non-Jewish citizens do not ‘question the rationale underlying the creation of the state’); (iv) the liberal liberal-nationalist (p. 41, ‘Palestinians in Israel,…to realise full rights and be treated with equal…concern,…are expected to emigrate to a non-existent and hypothetical future Palestinian state’, which assumes that ‘they are an immigrant minority even though they are in their homeland’); (v) classic liberal (p. 44, Raz and Dworkin insist that ‘[a] state should be the home of all its inhabitants, with no second-class citizenship, nor tolerated minority status’); and (vi) critical (pp. 45–47, ‘[t]he religious/ethnic definition is in direct contradiction with the multi-ethnic reality’ and requires a ‘historical denial’ of Palestinians’ roots in Israel).
In Chapter 3, Masri turns from theory to practice, by asking who are the People in the 14 May 1948 Declaration of the Establishment of the State of Israel. The Declaration contains the positive and negative dimensions of settler-colonialism (p. 73): ‘the People are…the Jewish inhabitants of Palestine at the time’, that is, ‘the settler nation’ which is ‘the “owner” of the state’, but the land is terra nullius and the Palestinian inhabitants are absent. They are not ‘partners in the founding, but…individuals…invited to join…an already existing body’. The idea of the founding people as Jewish was later strengthened by judicial rejection (pp. 57–58) of the possibility of a neutral and inclusive Israeli (rather than Jewish or Arab) nationality (in the sense of ethnicity) in the Population Registry.
In Chapters 4 and 5, Masri considers the process of ‘engineering the People’, through citizenship and immigration laws that include some and exclude others. The Citizenship Law 1952 (Chapter 4) serves as the main means of excluding Palestinians from the People. Because they were not ethnically Jewish and were therefore ineligible for immigration (and subsequent citizenship) under the Law of Return 1950, most Palestinians could only qualify under the 1952 Law if they were continually resident in what became Israel from 1948 to 1952. This excluded 80% to 85% of the Palestinians who had been living in Israeli-controlled territory (p. 86), because they found themselves living as ‘refugees’ outside Israel (they had been expelled during the armed conflict or expelled after the conflict ended through the denial of their right to return to their homes). Masri asks (p. 82): ‘[I]f a homogenous Jewish state was the goal, why did this expulsion/flight stop at 85% and not 100%? Why was a minority allowed to stay and given citizenship?’ He suggests that a 12.5% minority (reduced from a 2/3 majority in British Mandate Palestine) was seen as ‘insignificant’, and ‘a cheap price to pay for a greater sense of legitimacy’.
The Law of Return 1950 (Chapter 5) is the main means of including persons of Jewish ethnicity from anywhere in the world in the People, whether or not they could show a connection with the territory by identifying a parent, grandparent, or more remote ancestor who had lived in what became Israel. The 1950 Law’s preferential inclusion (pp. 102–103) ‘contributes to maintaining the Jewish majority…one of the components of the Jewish character of the state’, makes the most important question in Israeli immigration and citizenship law ‘who is a Jew?’ rather than ‘who is a citizen?’, and ‘represents the legal foundation of the settler nation’. The 1950 Law (p. 110) ‘openly favours one national group in a state where there are two national groups’(p. 125); ‘the whole system functions in a way to keep the numbers of the Palestinians as low as possible’. Masri concludes (p. 112): [I]f the right to immigrate is the main marker of the national homeland, does that mean that Israel is not the homeland of the Palestinians living in it? As is stands today, legally speaking, it is less of a homeland for them…than anyone [of any ethnicity anywhere in the world] who converts to Judaism.
In Chapter 7, Masri explains how Israel’s tradition of UK-style parliamentary sovereignty evolved into a partial constitution, consisting of a set of Basic Laws (from which a right to equality was dropped, pp. 169–170) with a higher status than ordinary legislation. This raises the question whether the definition of Israel as a ‘Jewish and democratic state’ is now constitutionally entrenched to the extent that it can never be amended. Masri cites (p. 176) a statement by Justice Barak, in a 2006 decision of the Supreme Court of Israel, that ‘a statute or [even] a basic law that negates the character of Israel as a Jewish and democratic state is not constitutional’. Masri therefore concludes (pp. 191–192) that ‘[a] democratic decision to change the Jewish character of the state is unconstitutional and invalid”, and that “the People that exercises sovereignty includes only those who agree with the Jewish definition of the state’.
Masri has made an important and valuable contribution to scholarship (especially in English) about Israeli constitutional law, and to scholarship about constitutions that exclude, by exposing the direct and indirect racial discrimination against Palestinian citizens that permeates that body of law, through an impressive array of examples from legislation, case law, and policies (only a few of which are highlighted above). Politicians in Europe and North America should take note of his very serious conclusion: given his finding (pp. 196–197) that ‘20% of the citizenry…are not part of the People’, ‘the nature of the regime in Israel [never mind the Occupied Palestinian Territory] cannot be seen as truly democratic’.
My only reservation about Masri’s analysis is his use of ‘settler-colonialism’ rather than ‘apartheid’ as a lens. Although settler-colonialism provides an accurate and helpful explanation of the non-consensual transfer of European populations into territories outside of Europe, it works better as a description of history than a prescription for the future, because it implies that ‘the settlers’ should go back where they came from. (I write this as a ‘settler-colonist’ who grew up in Canada.) An apartheid analysis stresses ongoing racial discrimination, and the need to bring it to an end through equal citizenship and voting rights, but does not suggest that members of the dominant racial group should leave the place that (however unjustly in historical terms) has become their home (see Wintemute, 2012).
As for future research, apart from extending his analysis to the West Bank (including East Jerusalem) and Gaza (pp. 22–23, 199), Masri could compare 1949–1967 Israel with Canada. If a just two-state solution were implemented tomorrow (and the right of return redirected to the new State of Palestine), what challenges would Israel’s democracy continue to face? How does the status of Palestinian-Israelis (20.8% of Israel’s population in 2016) compare with French-speaking Canadians (the ‘French-mother-tongue’ population was 21.4% in 2016)? Can Palestinian-Israelis be served by their government in Arabic in the same way that French-speaking Canadians can be served by the federal government in French? Are there Arabic-medium universities for the linguistic minority in Israel, like English-medium McGill University in Québec and French-medium Université d’Ottawa in Ontario? Should Israel change its Star of David flag to a more inclusive one, as Canada changed its British-looking flag (with a Union Jack in the corner) to the neutral Maple Leaf in 1965? Using Canada as a comparator would raise all these questions. In the meantime, Masri’s book is highly recommended to readers who wish to look behind the rhetoric of ‘the only democracy in the Middle East’.