Israeli legal scholar probes the difficulties of preserving rights of Arab communities in Israel in a region torn by interethnic conflict.
[First published on February 19, 2004, on the website of the UCLA International Institute.]
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In a region dominated by Arab dictatorships hostile to its existence, what chance does Israel have to preserve anything recognizable as democracy toward its large Arab minority? Hebrew University Professor Ruth Gavison expressed a cautious optimism that it could be done in a meeting of the Burkle Forum February 12 at the UCLA Law School. The forum is sponsored by the Ronald W. Burkle Center for International Relations. The meeting was chaired by UCLA History Professor David Myers.
The minimum requirement for a Jewish state to offer equal rights to a non-Jewish minority, Gavison insisted, is that the state have a clear and stable Jewish majority, otherwise it would inevitably degenerate into a dictatorship. She urged that Israel as part of its ultimate settlement with the Palestinians not attempt to hold onto land "from the Mediterranean sea to the Jordan river," but withdraw to something like its pre-1967 borders, where Palestinian Arabs would constitute about a 16 percent minority. A state with a large Jewish majority would necessarily reflect that in its language, culture, and holidays no matter how many rights were extended to other ethnic groups within its borders. "In fact," she said, "if it would be a democracy that would not reflect the fact that these people are a majority it would be antidemocratic."
More than this, however, she said, the Jewish character of the State of Israel is rooted in the idea of national self-determination. "The idea of national self-determination doesn't mean that all the population of a country belongs to one ethnic or national group. It means that people can be citizens of that country in many ways, but that this country does have a specificity and that specificity is the materialization of the right of a specific people with a specific culture, with a specific history, to self-determination, to enlisting the power of the state to protect themselves physically, culturally, and, in terms of identity, against the forces of assimilation or liquidation or attack by other groups around them."
Many, if not most, of the countries of the world are constructed around the self-determination of a specific national or religious group: Poles, Russians, Armenians, Han Chinese, Sunni Muslims, Irish, Japanese. In virtually all of these countries minorities exist who differ in language or culture from the dominant group. In countries such as the United States relations are generally, but not always, peaceful between the majority population and the various ethnic and religious minorities. Israel presents a case more like war-torn Bosnia with its Serb-Muslim fratricide or the clashes between Sunnis, Shiites, and Kurds in Iraq, where self-determination of the dominant group is in tension with the rights of a large and sometimes hostile internal minority.
The Movement for a Jewish Homeland and the United Nations Partition Resolution of 1947
Ruth Gavison began by reviewing the United Nations resolution of 1947 that created the State of Israel and sought, but failed, to create a Palestinian state at the same time. "When Israel was founded in 1947 by a United Nations resolution that decided to divide the land of Palestine/Eretz Israel, that is, the land between the Mediterranean and the Jordan River, into two nation states, one Jewish, one Arab, it was quite clear to the United Nations that there could be and should be a Jewish state and an Arab state in Eretz Israel/Palestine, and, not only did they think that these states could be democratic, they insisted that they should be democratic. Because in order to understand the partition decision, which is a highlight in the process that generated the conflict that we still see in that region, we need to understand the history of the issue."
The idea of re-creating a Jewish state in the Middle East, she said, had existed for a very long time in the diaspora Jewish communities in and outside of the Middle East, but in the early twentieth century as the idea of national self-determination gained currency in the world community, it gained adherents more broadly. "The principle was the universal principle, acknowledged after the First World War and again after the Second World War in the international conventions, of national self-determination. The idea was that it is good for nations to have the ability to maintain and perpetuate their culture and their identity. In some contexts you don't need a state to do that. But in other contexts, when there are serious physical threats to your security and serious cultural identity threats to your ability not to assimilate, then it may be the case that a national group is entitled to a state of its own.
"But, peoples are entitled to states of their own on the territories on which on which they sit. The Jewish people was anomalous in this sense because it was a dispersed people. It didn't have a single place in the world where it could consider home. So the national Jewish movement, unlike other national liberation movements, didn't have only as a challenge to liberate itself from foreign rule, colonialism, imperialism, or simply a situation of empire, as it was in multiethnic empires in Europe, but it also had the initial challenge of bringing back the critical mass of Jews to a place in which, after such a critical mass is established, a Jewish case can be defended as part of the principle of self-determination."
Were there ever hopes that this could be accomplished peacefully in the predominantly Arab Middle East? Gavison thought so. "Initially I think the hope was, and there were some agreements to that effect, since the Arab nation is rather large and Palestinians did not have at that stage a national characteristic but only a territorial characteristic, it was thought that it might be possible to have Jews create their state in Palestine and, the idea was, that Palestine was not densely populated, there would be many Jews coming in, the Palestinians would become a minority. This is something that they resented but this was the general idea. But it wouldn't be so terrible because there would be a host of Arab countries around and Palestinians could then choose, either to live as a protected minority, everyone hoped, in the Jewish state, or to move not that far away into an Arab country. However this is not how things developed. And the two communities started to struggle bitterly for control of the land."
By the time of the Peel Committee in 1938, the British, who administered the Palestine Mandate, and much of the international community, had come to the conclusion that the Arab and Jewish communities would not be able to live together peacefully in a single state and partition was proposed as the solution. This was supported by the United Nations Special Commission on Palestine and the United Nations resolution in 1947.
"The principal position of the partition resolution was not that it was just to all the parties. It was that this was the only way to deal with a very tragic situation in which two national communities, whose aspirations were completely different, whose cultures were completely different, could with time learn to coexist better than the way exhibited in the thirties and the forties.
"Unfortunately, the Arabs, while struggling very hard to prevent the United Nations resolution, were not willing to accept it. And they warned the world that this would happen: they said, we didn't succeed in persuading the United Nations, we are going to prevent the establishment of the Jewish state by force. As a result a war erupted. As a result, Israel gained control of a larger area of Palestine, of Eretz Israel, than was accorded to her under the partition resolution, and a large part of the Arab population of Israel left. I don't want to go into a debate how it left -- expelled, ran away, fled -- doesn't matter. The fact is that they left. One hundred and fifty thousand Arabs remained in Israel. No Jews remained in the areas captured by Jordan and Egypt."
That situation existed until 1967, when a group of Arab states launched a new war against Israel with the aim of destroying the Jewish state."Again this war failed and Israel gained control over the whole of Palestine/Eretz Israel. This is in various versions what we have until now."
The Democracy Debate in Israel after 1992
In 1992 Israel enacted two laws, one on freedom of occupation and the other on human rights. This opened a prolonged public discussion from many viewpoints on both the Jewish character of the state and the extent of democratic rights for the Arab minority.
"The tension between Jewishness and democracy existed before. It existed in judicial decisions, in political decisions. But the 1992 legislation triggered a new discussion of the possibility and the desirability of this combination. And indeed, there were two kinds of different voices coming from two different parts of the political spectrum suggesting that Jewishness and democracy could not go together, and naturally, each recommended that the State of Israel choose one or the other of these elements."
Meir Kahane, the American-born founder of the Jewish Defense League, emigrated to Israel in 1971, where he founded the right-wing Kach political party and campaigned for expulsion of the Palestinian minority and establishment of a theocratic state. Ruth Gavison commented that "Kahane combined in his vision both a very fundamentalist religious vision of the Jewishness of the state, plus a very very strong anti-Arab or anti-non-Jewish element in the state."
From the other side, "some Arab voices consistently since 1947 continued to challenge the legitimacy of the Jewish state and said a state cannot be both Jewish and democratic because when it is Jewish it means that non-Jews in it are second rate citizens. Democracy requires civic equality, and the Jewish state by definition cannot give non-Jews, and especially the indigenous Arab population, equal status. Therefore Israel cannot be both Jewish and democratic. It must choose. It must choose to be a democracy and lose and abdicate and give up its distinct Jewishness."
Gavison said that she regarded neither of these views as acceptable. She said that she considered Israel today as substantially democratic, although she felt it should be "more open, and more welcoming to non-Jews in Israel." In her view, "all theocracies, Jewish theocracy, Muslim theocracy, and Christian theocracy, cannot be a democracy." Because they are based on religious law, nonbelievers in that particular religion have no say.
At the other extreme is a state with an accidental and indifferent majority willing to let another ethnicity or culture become dominant through immigration or reproduction and radically alter the culture and character of the country. "But clearly, too, in frankness, this is not Israel. Because Israel is not a place where accidentally Jews are a majority. Israel is a place that was built with the idea the Jews must be the majority. It wants to perpetuate this majority, it wants to make this majority stable. This is clearly not an accidental demographic fact about Israel.
"Now you may say that in our world of globalization, human rights, universalism, cosmopolitanism, the nation-state is out. But if you look around you I think in fairness you will see that nationalism is a very very active voice. In some areas nationalism may be a bad force. But in many many places we celebrate nationalism. Czechoslovakia voluntarily, happily, divided itself into two nation-states, one for Czechs, one for Slovaks. And they are much happier now. The same has been happening in a much more violent way in the former Yugoslavia. Definitely this is happening in a very very strong way in Armenia and in many other places that were part of the Soviet Union, etc."
She suggested that the recent ban in France on head scarves for Muslim women in public schools was a reaction by French Catholics who are willing to tolerate a secular society but "don't want to be open to wide multiculturalism." Every country, she added, defends specific features and cultures that "sometimes are neutral, but sometimes they are alienating to some parts of the population."
Israel, she said, "gives Arabs, citizens of Israel, quite a lot of rights." At the same time it imposes burdens on its Arab citizens, one of the most important of which is the use of Hebrew as the national language. Full equality will be difficult to achieve while violent conflict is going on, but she felt it would be easier once a settlement is made with the Palestinian. And while she favors a two-state solution, Gavison conceded there was a possibility that there might be a single state, a proposal favored by important sections of the Palestinian community. "It all depends on what will happen in the region. If we are going to have one state from the sea to the river it should be a binational state. Not the state of all its citizens, because no one wants that. A binational state. People in the region don't want to privatize their noncivic identities. They want to remain Jews and Arabs. Muslims, Christians, Jews, in their religions.
"But if we are going to remain with a two state solution, we should, and I hope we will, have a Palestinian state. The Palestinian state will not be neutral. I hope it will be a democracy. But it will not be neutral. It will be Arabic speaking, it will be Muslim. Palestinian Christians are very worried about this aspect in the draft Palestinian constitution. And it will be Palestinian with a very very strong Palestinian narrative. I hope there will be Jews in the Palestinian state. I hope the Palestinian state will treat the Jews at least as good as Israel is treating the Arabs. That will be a very nice situation. I hope we get there."
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From the Question Period: Getting Down to Specifics
In the question period the discussion became much more specific about how the two communities in Israel coexist and under what rules. We are printing below a large part of the transcript of the question period, which probed Arab participation in Israeli electoral politics, housing in separate highly nationalistic communities, the reasons why many Palestinians still hold out for a unitary state and how Jews in Israel might respond to that, and whether Israeli society is essentially separate but equal and whether that is a reasonable solution to the rival nationalisms within its borders.
How Can a Jewish Majority Be Maintained, and in One State or Two?
Q: What do you think would happen if a large Arab minority existed within the green line?
Gavison: Well, it's a very interesting question, and I want to remind you that in the 1947 situation the Jewish state was supposed to have an Arab minority of 45 percent. But the idea was that there would be Jewish immigration, which was part of the reason for creating a Jewish state, because the Arabs objected to Jewish immigration, and that this would balance out. Part of the demographic problem is the result of the fact that ratios of birth are very different between the two sectors. But it is not accurate. The picture is a bit more nuanced than some people say, and I think this is people from both the left and the right who are trying to create a kind of urgency in the situation. Because the Arabs in Israel, without Jerusalem, are now 16 percent, and within the 1967 line it will take a pretty long time until the Jewish majority is seriously threatened.
But I think this is definitely something that you need to look at and what I hope will happen is two things. One, I think that once the situation stabilizes and there are two states, and I hope the Palestinian state will be a flourishing, free successful state, then I think we can think about the borders question again and about the relationship between the two states again. It is not as if I think that this is ideal. This is a very small country. National resources are very limited. The United Nations said, two countries with control of security and immigration, but social and economic and agricultural cooperation. I think they knew what they were saying. The water resources must be integrated.
It's not easy to separate. So what I would like to hope is that when things stabilize a bit and hopefully standards of living and degrees of freedom are going to be higher, that it will be easier to renegotiate borders so that more Arabs will live in the Arab state voluntarily, and we will not have this kind of situation. But there is another side to the same issue. If there is a Palestinian state I think that the status of the Arab citizens of Israel is going to change dramatically, because now they are really in a very precarious situation. Because the idea was that there would be two nation-states and then they would be a minority in the Jewish state but they would have neighboring to them their own national state for support, cultural and political. They would be in a way connected to their nation-state but they would choose to live as equal citizens in the Jewish state. That would be a stable situation.
Now what we have is not a stable situation and in part it is reflected in the fact that the Arab minority in Israel is not only fighting for equal civil rights within Israel. It is joining forces with the Palestinians to reclaim Arab self-determination in the whole of Israel. This is a very very difficult situation and it creates tensions between Jews and Arabs. It makes many many things much more difficult.
I think that if there is a viable Palestinian state then the choice for the Palestinian citizens of Israel can be made much more starkly. And the choice is: you can choose to be a minority in the Jewish state with full equal rights or you can choose to be full citizens in a cultural sense, in a narrative sense, in the Palestinian state. But you can't have it both ways. You can't be a citizen of the Jewish state and constantly delegitimate its existence.
I think we can work this out. I don't think we should decide now what we should do thirty or forty years from now. I really don't have the answer to that. One of the things that keeps me not so pessimistic about the region is the fact that whenever this idea arises that some land in Israel populated by Arabs will be transferred to the Palestinian state in exchange for Jewish settlements located next to Israel, most of the Arab residents of Israel refuse this move. With their land. To me it means that the Arabs concede that despite the fact that living in a Jewish state is hard on them, and they say it is hard on them, they did gain something by living in the Jewish state in terms of standard of living and health and education, and security even. So I think that Arab citizens of Israel, if they have a Palestinian state, will be able more readily than they are now to concede the value of Israeli citizenship and not use it in order to undermine the legitimacy of the Jewish state.
Why Does Israel Have Separate Communities for Arabs and Jews?
Q: Can you comment on the Katzir case regarding the Jewish ownership of property and the refusal to let Arabs live on the land? [On March 8, 2000, Israel's High Court of Justice ruled in a lawsuit brought by an Arab family asking for the right to live in the previously all Jewish community of Katzir established by the Jewish Agency. The court supported the Arab family, but the decision was controversial in Israel and various laws have been proposed since to undermine it.--Ed.]
Gavison: It's not about ownership. It's about residential rules. In Israel, 93 percent of the land is owned by the state. This is a heritage of the Ottoman and Mandatory regimes, it is not an Israeli invention. Of the 7 percent that is privately owned, half is owned by Arabs, which is much more than their relative size in the population, so we don't have a problem there. In addition to that, most Israelis don't live on their own land, but they have very long leases that are more or less like ownership. Arabs have leases of that sort on about 20 percent of the lived-in land in Israel with the exception of the Negev, which is the major part but it is very lightly inhabited.
So in terms of numbers there is no problem here. The Katzir case is different. The Katzir case is based on the fact that Arabs and Jews to a large extent in Israel are segregated communities. And the segregation is a combination of decision and all kinds of social and to some extent legal pressures. Land that belongs to the Jewish Agency is land that Arabs cannot situate on. But most of the land in Israel is not owned by the Jewish Agency or by the JNF [Jewish National Fund]. So on that land there is no general problem of anyone living. But as in many countries there is planning. And planning in Israel usually goes for differential communities. There is one community in Israel that is deliberately a Jewish-Arab community. This is a little moshav in the Jerusalem mountains called Neve Shalom. And actually in that place in order to maintain the more or less equality between Jews and Arabs, admission rules are not color blind. Not ethnic blind. Because you cannot allow natural market forces to move in.
What happens is that you have Jewish communities. Some of the Jewish communities are next to Arab communities. And middle class Arabs, like Iman Qaadan [the Israeli Arab family who sued the Katzir settlement] wanted to move into a Jewish community. And the question there was whether to allow this. The court said, ambiguously, we shouldn't discriminate. And I think everyone agreed to that. But the question still unresolved is, is keeping communities separate discrimination? This was not, until now, clearly resolved. The problem with Katzir was not would you allow one Arab family to move in. I don't think anyone would have objected. I think that the problem there is that, since this is in the vicinity of a large Arab community, if the principle is ethnic blindness, then a community that was built as a Jewish community is going to become, against the will of its citizens and residents, an Arab community. And I think that people feel that maybe both Jews and Arabs should be protected against being forced to live in a bicultural community or as a minority in a community that has the other culture. So it is a bit more complicated than some accounts have portrayed.
Did Permitting Kahane to Play a Role in Israeli Politics Strengthen the Palestinian Case against Israel?
Q: You mentioned earlier that the opposition to Jewish and democratic from the Jewish perspective was raised by the Kahane position. Why do you think so much legitimacy was granted to Kahane, who was clearly an extremist? The Arab opponent used the Kahane argument as a way of delegitimizing Israel.
Gavison: Arguments go in various interesting ways. From the very beginning there was the claim that Jews are not a people, they are only a religion. And we all know that these voices come from enemies of the Jewish people -- and from orthodox Jews. Before Kahane arrived one of the interesting questions in Israel was, are Arabs allowed, in the democratic game, not only to participate in the elections but also to put forward a national platform? In 1965 an Arab national party wanted to run for parliament and the laws of election in Israel didn't say anything about the content of platforms. But nonetheless the election committee banned that party and the supreme court in a two-to-one decision said this party was incompatible with the Jewish nature of the state because it really worked on a message that delegitimated the Jewish nature of the state. So the problem was there immanently even before Kahane from the Jewish-Arab side. . . .
So the court upheld it, this party did not participate. I think at that time it would not have passed the threshold, it wouldn't really have entered parliament. But in the eighties Kahane started running and national Arab parties emerged again. People really wanted to ban Kahane. So the election committee banned Kahane, and there was a national Arab party and they did not ban it. The court let both of them run and both of them entered parliament. And Kahane was an unbelievably provocative parliamentarian. He put on the agenda of the Knesset bills that looked, deliberately, not by accident, like Nuremberg laws. Separation. Mandatory minimum punishment of five years for an Arab who has sexual intercourse with a Jew -- with her consent! What kinds of really terrible things. And he did it to start a debate. His line was, I'm saying what many people want to say and don't dare to say.
And the political system really wanted to exclude him. But there was also this problem of symmetry. So a law was passed, to ban parties that are antidemocratic, racist, and deny that Israel is the home of the Jewish people. In the next elections Kahane was banned as antidemocratic and racist. And a national Arab party was banned for denying that Israel is the home of the Jewish people. The court upheld the ban on Kahane and let the Arab party run. And there was a repeat performance of that in the last elections and again the court let the Arab national parties run.
So what we have in Israel now is the exclusion of the blatant message of Kahane, and an inclusion, with a lot of public debate and a lot of tension, of Arabs who are saying explicitly that you shouldn't have been here, and you are a colonialist, and you are fascists, and you are like Nazis, this is an apartheid state. And they say all this in the Israeli parliament. I think that what we are doing is we are trying to be inclusive enough to work out the internal debate in the way democracy deals with that.
Can an Arab Be Prime Minister of Israel?
Q: Could you explain to me what would be some of the restrictions on non-Jewish citizens?
Same questioner: Can a non-Jewish citizen become prime minister or head of state in your democratic and Jewish Israel?
Gavison: There was a debate about that when Israel was thinking about a constitution. And actually the leaders of the political parties said, well, of course, it is quite clear that only a Jew will be, but we are not going to write this into the constitution. So the constitution now is neutral on that one. In fact, Azmi Bishara, a vocal leader of one of the Arab national parties, when we had, for a very short time, direct elections for the prime minister, he actually presented himself as a candidate. It was clear that he was not going to be elected, but he wanted to make the point that he could be a candidate. And he was a candidate. Some people were very angry. Some people said we should have a law against this. There is no law against it. If, indeed, Arabs in Israel become 30, 40, 45, 50 percent, it may well be that Arabs will not only be members of government, which obviously they will be, but will also be in this political situation in which they will be prime minister.
I want to remind us that Jabotinsky, one of the Zionists who is considered most right wing, was in this sense extremely liberal. And he actually said from the very beginning that in the Jewish State of Israel, because he was having a hope that the Jewish majority would be huge, so that the Jewish majority would be very stable, but despite the fact that he thought the Arabs would be a very stable minority in Israel, he wanted to suggest and write into the constitution that there would be a rotation. That if you have a Jewish prime minister that you would have an Arab vice prime minister. That there would be a solidarity and fraternity between the two communities, with a Jewish majority.
Will the Demographics Lead to Apartheid?
Q: Even if there are two nation-states, there is a chance that in a quarter of a century there is a possibility that the Palestinians might become a majority. If that happens, to remain a Jewish state you must add another word, and that word, I am sorry if you do not like it, is called apartheid. I come from the Indian subcontinent and am neither an Arab nor a Jew. And I think in this debate there are some lessons to be learned from us, on the Indian subcontinent. It is only when the area became divided by religion and Pakistan declared itself an Islamic state, not only were there persecution of minorities, of non-Muslims, but they even went so far as to declare minority Muslim sects as [heretical]. In India there was no problem until of late, over the last decade, it has been trying to be Hindu and we have all kinds of problems. More Muslims live in India today than in either Pakistan or Bangladesh.
Gavison: I agree with you the world is a very complicated place and it is hard to do justice to everything. Let me say this to the first question. If Jews are not a majority within their own country it's going to be a serious problem. I do not want to prophesy what is going to happen. I tell my country that first of all it needs to quickly do what it can do now in order to maintain the Jewish majority within its territory. This is something that Israel can do. For me, Israel cannot maintain its majority while violating the human rights of others. But other than this constraint, which is a very serious constraint, I think it is legitimate on the side of Israel to try and do things like narrowing its borders, or encouraging immigration, that will make it the case that it will not be democratically possible to divest the state of its Jewish nature, so that it will not be necessary in order to maintain the Jewish nature to give up democracy.
On the other issue I am not sure you are right. Obviously the religious element complicates matters quite a lot. And in the region of the Middle East we do have that element quite clearly. But on the other hand I think that within both the Palestinian nation and the Jewish nation there is a very interesting internal dialogue between the peoples between cultural-national identity and religious identity. This is true for a lot of countries in the Middle East, in Egypt and in Jordan, and in Syria. And I think that this is a hopeful sign. An attempt to work out differences so that it will not be only religion but some combination of religion and culture and history is on the whole something that will help the region live in a more cooperative fashion.
Q: It seems that you think that the solution of the Palestinian problem assumes that you can get back to the pre-1967 boundaries. It would seem that there is no incentive for the Palestinian leadership to accept such a proposal, knowing that in the future they will be a majority. What then can Israel do if the Palestinian leaders begin asking for one man, one vote rather than some sort of [two-state solution]?