Basic Law: The Jewish State Problem Won’t Go Away

Two more views on the issue of calling Israel the Jewish State:

Symptoms of neurosis | Two definitions, two implications

In two of the Basic Laws of Israel – Israel's constitution in the making — the country is defined as “a Jewish and democratic state.” Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation both claim to “establish in a basic law the values of the State of Israel as a Jewish and democratic state.” What the law means by defining Israel’s values in such a way is still very much in doubt. Competing interpretations have led to attempts to refine the law and make it more specific, as recent legislative proposals have proven. Last summer, an Israeli law professor was appointed by Israel’s minister of justice to investigate the need for further such legislation – her recommendations are due in early May.

These investigations and debates are not taking place in a vacuum. As Israel searches its own soul and is struggling to find an acceptable meaning for its self-inflicted definition, it is also negotiating with its neighbors, from whom it wants recognition of its inherent “Jewishness.” Hussein Ibish, of the American Task Force of Palestine, is understandably puzzled by this demand: “Israel itself cannot define what a ‘Jewish state’ means, exactly”, he wrote last week. “So, in effect, Palestinians are being asked to agree to something that even the Israelis cannot define with any degree of specificity.”

Yet, Prime Minister Benjamin Netanyahu is insisting on Palestinian recognition of Israel as “a Jewish state,” a demand that recently became a focus of the negotiations, and, as of last week, has also become a point of public frustration for the United States’ policy makers. Speaking to the House Committee on Foreign Affairs, Secretary of State John Kerry clarified that in his view it is “a mistake for some people to be, you know, raising it again and again as the critical decider of their attitude towards the possibility of a state and peace, and we’ve obviously made that clear.” Kerry, contrary to what some news reports claimed, was not trying to announce a reversal of an American position – which has been generally supportive of Israel’s demand. He was trying to propose a toning down of the issue, and was trying to remind the parties to negotiation that dealing with this symbolic question at such high volume at this time is detrimental to the talks.

Kerry is probably right. The “Jewish state” issue makes negotiations so much more complicated. The question is why – and the answer is as follows:

For Israel, the “Jewish state” demand is the way to test the true intentions of the Palestinian leadership; the refusal of Palestinians to accept the term is proof that the end goal for them remains the ultimate disintegration of Israel as the state of the Jewish people. For the Palestinian side, the refusal to accept the “Jewish state” is a rejection of the demand that it surrender its own narrative, a refusal to let go of the Palestinians' own historic claim to the land. That Israel insists on this demand is proof to the Palestinians that Israel has not yet come to grips with the need to recognize that there is, indeed, a competing narrative and that there is, indeed, a competing claim on the land – a continuation of the suppression of the Palestinian tale. As I have written before: this story of recognition is not about the lawyerly – or philosophical – intricacies of mutual recognition. This story is about mutual mistrust. Israel – the Israelis – don't really believe that the Palestinians want to “end the conflict.” While the Palestinians still believe that Israel’s ultimate aim is to deny them of their rights, to erase their mark from the land.

A couple of weeks ago, a Palestinian leader, Mustapha Barghouti, explained in an article the three reasons that the Palestinian side would not recognize the “Jewish state.” The first is about the narrative. The second is about the refugees – an acknowledgment of a “Jewish state” is a way for Israel to rid itself of any demand for a “right of return” for Palestinians. The third is about Arab Israelis – the Palestinians claim that recognizing Israel as “Jewish” is equal to an abandonment of Arab Israelis, their fellow Palestinians who are Israeli citizens.

When Israelis ponder these three reasons, a mirror-image reasoning emerges: yes, they need the Palestinians to accept a Jewish narrative, to acknowledge the historic right that Jews have in this area. Palestinian leader Yassir Arafat blatantly argued at Camp David that there was no Jewish temple on the Temple Mount, and many Jewish Israelis came to believe that such a blatant denial of Jewish history in the Holy Land is at the core of the “conflict” – that without official repudiation of this denial on the part of the Palestinians, no peace can be achieved or be expected to last. Recent attempts by Palestinian leaders to use Harry Truman's famous note of official recognition, from which the term “new Jewish state” was deleted in exchange for “new state,” is yet another proof of the Palestinians' tendency to engage in manipulation of history. The Palestinians would like you to believe that Truman was not comfortable with a “Jewish” state. But, as far as we know, the deletion was procedural rather than essential: the Americans were waiting for the state's new name and weren't quite sure what to write. One proof: the term “Jewish state” still appears, untouched, at the top of the page.

Bargouhti’s second point – his attempt to explain why recognition of “Jewish” Israel is a non-starter for Palestinians – only serves to embolden most Israelis to stand by their position (most Israelis, including head of the opposition Yitzhak Herzog, support Netanyahu’s demand). Indeed, they see the “right of return” as a deal-breaker. Palestinian president Mahmud Abbas insisted in early March on a personal “right of return.” If that's the case, an agreement between Israel and Palestine becomes very unlikely, as Elliott Abrams commented upon reading Abbas' words: “No Israeli government will ever sign a deal that would leave Israel a majority-Arab country.” A Palestinian recognition of Israel as “Jewish” is one of several insurance policies that can convince Israelis that the “end of conflict” is really the end and not a beginning of a new phase.

And, indeed, when thinking about Barghouti's third point, Jewish Israelis want to make clear that, Arab presence notwithstanding, Israel will remain a Jewish state. Israeli Jews would point to the fact that Barghouti conveniently ignores the full definition of Israel as “Jewish and democratic” – namely, that the state, while markedly “Jewish,” has no intention of discriminating against its Arab citizens (of course, he might argue that being “Jewish” is inherently discriminatory).

On the eve of Purim, Israeli Defense Minister Moshe Yaalon said in an interview that Abbas' attempt to get to an agreement without full recognition of Israel as a Jewish state is a repetition of the “Oslo trickery”. Israelis, having spent the last two decades negotiating with the Palestinians, and being disappointed with the results, want to make sure that they do not buy the damaged goods of previous agreements twice. Naturally, there are two sides to this story – and Palestinians are also disappointed and believe that Israel is the party that isn't negotiating in good faith. They claim that the “Jewish state” demand is in fact an Israeli trick to abort the negotiations.

Maybe so – we don't know what lies in Netanyahu's heart. But that hardly matters. What matters is the fact that the Palestinians truly do not want to recognize Israel as a “Jewish state.” That they would not humor Netanyahu by agreeing to put whatever name of Israel he wants in the agreed-upon document. That they could not dismiss his demand by saying, “no problem.” That is, because Israel “the Jewish and democratic state” seems to still be a problem. And whatever one thinks might be a better tactical way to tackle it – dealing with it now or postponing it, looking for a lawyerly circumvention of it, or being blunt about it – this problem will not go away easily.

No problem in the Israeli-Palestinian conflict goes away easily.