The Volokh Conspiracy

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The legitimacy of Israel's nation-state bill (II): diplomatic considerations


Yesterday I explained how Israel's Jewish nation-state bill is unremarkable compared to many European constitutions with similar, and stronger, national homeland provisions. The proposed measure must also be understood in the context of Israel's diplomatic situation. Israel's biggest diplomatic issue is the status of Jerusalem and the West Bank, and international pressure to create a new Arab state there and in Gaza. The major argument by proponents of territorial withdrawal (including President Obama and Sec. Kerry) is that despite the serious security risks, Israel must retreat in order to maintain a "Jewish state." Indeed, even foreign leaders, like President Obama and Secretary Kerry have both justified their pressure on Israel by invoking the preservation of the Israel's Jewish identity.

Thus supporters of Israel leaving the West Bank believe having a Jewish state is worth security risks, surrendering historical homeland and religious sites, and expelling over 100,000 Jews. That suggests a Jewish state is not merely a legitimate thing, but one that is worth a great deal. Yet the same voices calling for Israel to undertake dangerous diplomatic concessions in the name of preserving the state's Jewish identity balk at legislation declaring that the state in fact is what they claim they want it to remain.

Yet if being a "Jewish state" cannot even justify democratic legislation about holiday and other public symbols, it is not clear what the big deal is. Going by the current reactions, the only value in a "Jewish" state is that it can expel Jews from their homes with little criticism. (Given the general indifference when other nations expel Jews, this also seems like a thin benefit.)

On the other hand, the Palestinians not only refuse to acknowledge the Jewish character of the State of Israel, they also demand an absolutely Arab character to the Palestinian state. This is seen rhetorically, their constitution, the Palestinian National Charter, which opens with the declaration "Palestine is the homeland of the Arab Palestinian people; it is an indivisible part of the Arab homeland, and the Palestinian people are an integral part of the Arab nation." It is seen also in, the Palestinian's minimum demand that their new state be born without any Jews, without an ethnic minority. The "settler problem" stems from the widely accepted notion that the Palestinian state cannot have a Jewish minority (which would probably be well under 10%, compared to Israel's 20% Arab population). In other words, the Palestinians require establishing Palestine as an (all-)Arab state, but refuse to accept the Jewish character of Israel.

To agree to this area as "exclusively" Arab territory, without a Jewish minority to parallel the minority claims of Israeli Arabs, Israel would need to be secure in its universal recognition as the small corner of the world reserved for the national self-determination of Jewish people. Thus the widespread international opposition to the Jewish state law can only undermine Israeli confidence in the peace process, or at least the intentions of the processors.

Thus the criticisms of Israel's proposed law encompass multiple levels of hypocrisy. Israel cannot define itself as a Jewish state except by expelling Jewish settlers; it must uphold principles of equality but will not be treated equally with other Western nations.