Discrimination is legal, there are no Israelis: Reading the Supreme Court’s decisions on Israeli nationality

by Ofra Yeshua-Lyth

Published on Mondoweiss on June 3, 2014

With two lengthy reasoned, precedential verdicts issued in recent months, the Israeli Judicial branch has joined the Executive and Legislative branches, offering its own full backing and blessing to a widely known practice, confirming that in Israel there is no legal basis for civil equality. The state may and does openly and officially discriminate between its citizens according to their religious and ethnic origins. Furthermore, it even bars the right of individuals to determinate the civic status by which they wish to be registered. For many years we have become accustomed to the impossibility facing people who wish to be defined “Jewish” without proper credentials. Now it appears that breaking out of one’s branding as a member of the privilege-rich Jewish nationality is also impossible in the Jewish-but-not-really-democratic Israel of the 21st century.

A unanimous rejection met the appeal of 21 members of the “Ani-Israeli” (I am Israeli) association headed by the linguist Professor (emeritus) Uzzi Ornan. Their request, as represented by the lawyers Yoella Har-Sheffi and Yosef Ben Moshe, was to be registered as Israeli nationals, instead of the common practice of registering the nationality according to their ethnic origins or the religion of their parents. Petitioners included Jews, Arabs, a Burmese, a Druze and a Russian. The appeal had been shuffled in the courts’ hierarchy for over ten years before it finally and ultimately was rejected by a venerable panel of three Supreme Court Justices headed by no other then the President, the Honorable Asher Grunis. The verdict decried clearly and unambiguously that there is not and cannot be one nationality for all Israeli citizens. [1] This stirred a certain interest in Israel, and was received with some real amazement in overseas circles that follow news from this country, including those who could – at last – receive an official confirmation to their years-long suspicions about the real nature of the Israeli regime. [2]

The ink had not yet dried on this decree when another panel of Supreme Court Judges produced – much faster, and under the veil of silence offered by the cooperative and uninterested Israeli media – another essential and crucial verdict directly related to the same issue. Professor Uzzi Ornan – as mentioned earlier, the founder of the Ani-Israeli Association – demanded that the Ministry of the Interior be instructed to register him as an Israeli citizen “by virtue of residency” instead of a citizen “by virtue of the right of return according to article 2(b) of the 1952 Nationality Act.” According to this act “Citizenship by virtue of the Right of Return” is awarded to “whoever made Aliya to the land or was born in it before the establishment of the state – as of the date of the establishment of the state.” As in the Ani-Israeli case, Professor Ornan was represented by advocates Yoella Har-Sheffi and Yosef Ben Moshe. [3]

Ornan, who was born in the land of historic Palestine-Israel in 1923 and became one of the founders of Hebrew linguistics, celebrated his 90th birthday on the year this appeal was launched. Since the establishment of the state of Israel Ornan has consistently refused, in each and every encounter with the Israeli bureaucracy, to accept a definition of “Jew” or “citizen by virtue of the Law of Return.” Still he discovered that contrary to all his written declarations he was branded in all the registries of the Ministry of the Interior as a citizen by this definition, a member of the privileged-by-ancestry group of Jewish Israelis.

As a native of the land Professor Ornan could think of no reason why he should not be registered – same as hundreds of thousands of native non-Jews – as an Israeli citizen by virtue of residency. The three Supreme Court Judges apparently thought differently. Their position was eloquently summarized by the Hon. Elyakim Rubinstein, who also took the trouble to express his high esteem as well as birthday greetings to the applicant. He even mentioned in his verdict that many years ago Ornan was his Hebrew teacher in the university, and that prior to this Ornan was a member of the ETZEL (Irgun) underground against the British mandate, and served a five year prison term in Eritrea in the 1940s.

“Clearly the intention of the Law of Return was a matter of principal, and its reason is the linkage between Jews and the Land of Israel,” Rubinstein asserts, rejecting point blank Ornan’s interpretation that the law should only apply to people who were born elsewhere and emigrated to this land.

Rubinstein continues: “The State of Israel as a Jewish and Democratic State is a highly precious pledge deposited in our hands, it is the realization of the Zionist idea, it is the only Jewish state on earth, while it must aspire to offer appropriate equality for minorities; and this court cannot be expected to erode its essence and its character.” [4]

What, then, is the “essence and the character” of the “Jewish and democratic state” so dear to the heart of the Hon. Rubinstein? A related question would be, how to resolve the contradiction within our most superior judicial arena, which recommends the state to “aspire to offer appropriate equality for minorities” while with the same single breath authorizes the same state to use legal tools which facilitate the blatant discrimination between the “Law of Return” citizens and the citizens “by virtue of residency”? To brand citizens according to “national” criteria which are nothing but ethnic and religious distinctions?

Reading the position the state presented in response to the “Ani Israeli” appeal reveals that from the very start, the jurists in the Ministry of Justice considered this appeal as aspiring to “undermine the infrastructure of the Jewish State” and therefore they considered the appeal “doomed to be crushed”. More than ten years later, the Supreme Court adopted this position in a fully detailed and well-reasoned document, while taking into account, as asserted by the honorable Judge Uzzi Fogelman, that:

“we are dealing here with a sensitive and highly controversial issue on both a historical and moral level that has been with the Jewish people for many years and with the Zionist movement from its very beginnings. The concept that Judaism is not merely a religious but also a national affiliation is a cornerstone of Zionism. Against it presents itself the concept according to which Judaism is merely a religion, and therefore the national affiliation of Jews is according to the state of which they are citizens.” [5]

The Hon. Fogelman and his co-panelist the hon. Hanan Meltzer invoked –in the long position papers they both contributed – many judicial as well as non-judicial authorities. Their texts are embedded with references from leading social and political thinkers with emphasis on Israeli scholars (e.g. Alexander Yacobson, Menny Moutner, Ruth Gabizon, Amnon Rubinstein, Barak Medinah and Chaim Ganz) and others whose line of writing is compatible with the position of the court (e.g. Martin Gilbert). With several variations, all these writers obviously made the case for the justification of the Jewish-Israeli linkage in its present incarnation.

Even poetry was called up to corroborate the court’s assertion that the situation will never exist where “one gets up in the morning all of a sudden feeling as a people and starts walking.” [6] Judge Hanan Meltzer included the full text of this poem by Amir Gilboa in his conclusion that fully supported the verdict of Judge Fogelman. It was the Hon. Meltzer who supplied the headlines that summarized this highly important court’s decision:

“The petitioners did not succeed in presenting the case that […] (factually and judiciously) an Israeli Nationality has developed, as they pretend, which is shared by members of different religions, or people who have no religion, or those who belong or did belong in the past to different ethnic groups.” [7]

Judge Meltzer added:

“The constitutional Jewish-ness of the state negates any judicial option to recognize an ‘Israeli nationality’ which supposedly is separated from the ‘Jewish nationality’, as had been so well illuminated by Court President Agranat in his verdict concerning the Tamarin case [8]… furthermore – denying the other nationalities in Israel and including them all in the ‘Israeli nationality’ is contrary to the democratic character of the state.” [9]

A particularly interesting aspect of the Supreme Court’s ruling is the fact that while rejecting the appeal the panel chose not to accept the rational used by the lower court that ruled against the applicants in the first place. In the district court of Jerusalem, the Hon. Judge Noam Solberg (who in the meantime was promoted to the Supreme Court) decreed that the demand to recognize the Israeli Nationality should not be judged by the court because the issue is “not judicial” and should be left to the legislative branch to deal with. The three Supreme Court judges unanimously rejected this argument, making clear that they are indeed authorized to discuss the issue of nationality registration, which in their view is in the range of “normative judgment.” In so decreeing, they – surprisingly – exercised judgmental activism. Mostly, judgmental activism is complained against by right-wing critics of the Supreme Court. Not too surprisingly, the only criticism this time on this position was voiced by a scholar identified with the progressive wing of the juristic elite, Professor Aeyel Gross. [10]

It is perhaps no coincidence that these two fascinating precedential verdicts in issues of civic and “national” rights in Israel were decried by the judicial branch in an era that sees the legislative branch so busy with the production of a large variety of abusive laws. These laws are all based on the principal of preserving the Jewish essence and character of the state, and the enhancing of privileges to its citizens who are of Jewish extract. [11]

For the executive branch, acting through the different government ministries and the security forces it has at its disposal, this regime of privileges is a discipline as old as the state itself. The practice of discriminating against citizens of non-Jewish extract, with emphasis on the non-Jewish Arab population, has been exercised in the early years of the state mainly under the all-encompassing umbrella of the Military Rule. Ever since the early 1950s, this practice was given the backings of a meticulous legislative enterprise that advanced with little or no protest from generations of juristic academic elites. No less than 55 such laws have been passed and canonized. [12] Practically in all of them, the distinction between “citizens by virtue of the Law of Return” and “citizens by virtue of residency” is the critical sovereign tool for the actual implementation of the discrimination. In this respect, the important recent precedential verdicts are merely the last nails for the coffin on the idea of Israeli democracy: they make sure there will be no way to label Israel a regular liberal democracy where all citizens are equal before the law.

When the Hon. Judge Rubinstein calls on the state to “aspire for appropriate equality” and with his colleagues repeating dozens of times the mantra “Jewish and Democratic” that they apparently see as self evident, the innocent reader might have assumed that the venerable panel aspires to bring a full or at least partial annulment of this list of disgraceful laws, practices and regulations. Not that the legislative house, the present Knesset, would have taken notice of any such polite recommendation to stop its accelerated galloping towards ever more initiatives that are meant to further harass non-Jewish Arab citizens of Israel.

“Citizenship by virtue of the Right of Return” is the most basic, enormously useful concept for the actual practicing of discrimination between Israeli citizens. It is of course a euphemism for citizens that the religious establishment is prepared to confirm their claim for Jewish identity or for the Jewish identity of a family relative second time removed.

The instrument for the determination of the “brand of citizenship” is the Population Registry and the traces it leaves in the identification cards we carry: citizens of “Jewish nationality” are treated differently from citizens of other “nationalities” – especially from citizens who have “Arab nationality” – upon dealing with the civil servants whose job is to carry out the policies designed by the state. This happens at the border control checkpoints, at the military government’s checkpoints in the occupied territories, in the Ministry of the Interior – the authority issuing residency and citizenship IDs – and at Israel’s Land Administration.

Many Israelis are comfortable with the notion that the “nationality” section in our identification cards was cancelled in the year 2002; they would point at the line of asterisks replacing the word “Jewish” or “Arab” or “other” in the IDs issued after this date. But this is nothing but an extremely transparent smokescreen. For the appointed officials in charge of the different discrimination junctions, a split second is enough to correctly identify the “national identity” of the citizen standing in front of them with a blue Israeli ID. Jews – and only Jews – have the date of birth registered according to the Hebrew calendar. If this is not enough, IDs of non-Jews are the only ones with a seemingly innocent section for the first name of the grandfather.

There is no lack of data documenting the Israeli discrimination system. It is available in thousands of research papers and reports. [13] Issues are of a rich variety, covering the various ways an individual interfaces with the government. Education, welfare, commerce and industry, certainly zoning and building permits, not to mention the infamous “citizenship regulations” are naturally included. A non-Jewish citizen going abroad for a few years will discover that his or her citizenship had been revoked. A Jew may always present oneself after being absent for dozens of years and enjoy the perks of “the Law of Return”. Spouses and even children of non-Jewish citizens normally are not recognized for citizenship and mostly not even allowed residency.

The distinction between the Jewish Nationality and all other nationalities is the fundamental generator for the number one Israeli-Jewish existential anxiety, otherwise known by its official title “The Demographic Threat.” The Palestinians were not left alone in this scary category. Labor immigrants, refugees and family members of so called Jewish immigrants are also treated according to the basic criterion that sees every non-Jewish individual as a menace over the future of the Jewish State.

The present treatment of the Bedouin citizens in the Negev Desert, in the south of Israel, provides a perfect test case – one that could hardly be dreamed up. Bedouin settlements are supposed to be uprooted. Their lands will be used to erect settlements based on ethnically pure Jewish settlers. Forests of the Jewish National Fund already cover historical pastoral grounds and more are about to be planted. Jewish “individual farming” settlements are sponsored and subsidized. No Bedouin may hope to be allowed such a one-family-unit farm, specializing in offering goat and sheep cheeses, as well as “zimmers” hospitality suites (“Bedouin-style hospitality” thus declared an exclusive Jewish-only tradition!).

***

At an even deeper level of the “national distinction” so fundamental to the Israeli substance is the fact that there is actually nothing national about it. Israeli academic and intellectual liberals of all political currents have made a habit of effortlessly clearing this inconvenient huddle, persistently refusing to face the obvious: a “Jew” in Israel is only one who is so defined by the state’s officially recognized institutions of the Jewish Orthodoxy. The “Jewish nation” is nothing but a religious closed sect running on purely religious principles.

In other words, the central element in the “determination” of the Israeli state and of its group of chosen citizens is their religious affiliation. The entry gates of the Jewish closed sector are hermetically locked for those who were not born Jewish or had not “properly” converted into Judaism. We had always know that for conversion to be accepted by the state one must take on the Sisyphean, years-long task of being immersed in the most severe version of orthodox Judaism. It now appears that exiting the same sector is no less problematic. The late author Yoram Kaniuk created quite a stir when he managed to extract a Supreme Court verdict that allowed him to cancel his registration as a Jew according to his religion in the Population Registry. The “religion” clause exists in the registry of the Ministry of the Interior as information available to the state but not visible on ID cards and inaccessible to a citizen not making a special effort to find out what is written there. As many of the immigrants into Israel by virtue of the “law of Return” are not recognized as Jews by the rabbinical establishment, the registry of a person as “non Jewish” while at the same time “eligible according to the Law of Return” is no real problem for the highly convoluted Israeli bureaucracy. Kaniuk conducted an adequate legal battle and his aim was fulfilled. But he remained a citizen by virtue of the Law of Return.

Against this background the flat, determined rejection of Uzzi Ornan’s appeal is even more interesting. The judges in Jerusalem are not really interested in the faith and beliefs of the applicant, but in his linkage to the Jewish religious group, whose perimeters are exclusively the prerogative of the religious institutions. Ornan’s attempt to disengage himself from this group was decisively crushed. In the Ani Israeli case, Judge Fogelman was left in the minority as he expressed the opinion, that the 21 applicants [14] have the option of requesting that the “nationality clause” in their entry at the Population Registration be erased altogether. Both President Grunis and Judge Meltzer would not endorse this idea. It should be noted that the applicants had no interest in such a “solution” as their intention was to define a nationality that should be accessible to every citizen of the State of Israel.

The failure of Ornan, as well as the failure of the Ani-Israeli applicants in fact indicates a resounding denial of their right for self determination in the state they live in. With the Ani-Israeli petition, the judges claimed that there is no such thing as “Israei Nationality” thus denying the 21 petitioners their right to determine themselves as Israelis. Their refusal to recognize Ornan as a citizen “by virtue of residency” – a member of a very large and important minority group of natives of the land who happen not to be Jewish – offers a solid confirmation that none of us in Israel posses the basic autonomy considered a fundamental human right: one’s right to determine one’s national identity.

How embarrassing, because the “right for self-determination” is a basic political right constantly flagged by the many advocates of Israel’s legitimacy, especially from the liberal-left wings of our political scene. Ignoring the fact that to be Jewish in Israel is not the privilege of the individual but of a very specific religious establishment; ignoring a list of legal and juristic precedents that cemented the inability of Israeli citizens to make personal decisions regarding their national identity, clearly puts the lid on the last excuse for the so-called legitimacy of the “Jewish and Democratic” state.

We are dealing here with a theological-clerical-based regime. It certainly shows – at least for the time being, at least as far as the citizens of the privileged group are concerned – many significant liberal characteristics, But this regime represents an anomaly in the norms of a world that is defined as democratic and “westernized”; the very world that the state of Israel, its elites and its leadership pretend to be a part of, nothing short of its flagship in the presumably wild Middle East.

It is worthwhile to quote Uzzi Ornan’s reaction upon the publication of the verdict by the three judges that rejected the Ani-Israeli appeal in October 2013:

“In its ruling, the court, in effect, agrees to totally ignore the obligations included in the Declaration of Independence, which promises full equality among all the state’s citizens, regardless of religion, race or gender. The government consensus that has developed ignores the existence of an Israeli people that was created with the Declaration of Independence. This consensus enables the Jewish majority to have full control over the country and to operate not for the benefit of Israeli citizens but for the benefit of the current political majority among the Jews.”

The Hebrew version of this article was published on “‘HaMishpat’ Online: Human Rights – Insight into Recent Judgments”; by the Emile  Zola Chair for Human Rights, Haim Striks School of Law, COMAS, ISRAEL January 2014 (PDF). Thanks to Liz Magnes for her assistance with the translation. The writer is one of 21 petitioners for the Ani-Israeli case and author of The Case for a Secular New Jerusalem, published May 2014 (English version of the Hebrew title “Eretz, Brith; Why Israelis do not have a Democratic, Secular State).  


Notes

1. File No. 8573/08Civil Appeal, Ornan et al. v .Ministry of Interior (Oct. 2,2013 amended on 6.10.2013), Nevo Legal Database (by subscription) (Isr.)(hereinafter: Israeli Nationality case);File No.8140/13 High Court of Justice, Ornan v. State of Israel (Dec. 9.2013), Nevo Legal Database (by subscription) (Isr.) (hereinafter: HCJ Ornan). 

2. Aeyal Gross, Analysis: Court rejection of Israeli nationality highlights flaws of Jewish democracyHaaretz (Oct. 3, 2013); Jonathan Cook, Court nixes push for ‘Israeli nationality’Aljazeera (Oct. 18, 2013); Ben Lynfield, Supreme Court rejects citizens’ bid to have nationality declared as Israeli rather than JewishThe Independent (Oct. 3, 2010); Anshel Pfeffer, Israeli? There’s no such nationality,The Jewish Chronicle Online (Oct. 11, 2013); Ben White, Court denial of Israeli nationality reinforces discriminationMemo (Oct. 7, 2013); Jonathan Cook, ‘I am Israeli’: Israel will not recognize an Israeli nationality while it seeks to maintain Jewishness at all costsUruknet (Oct. 15, 2013); Jonathan Cook, Lawsuit challenges Israel’s discriminatory citizenship definitionThe Electronic Intifada (June 4, 2013); Omar Baraghouti, Israel refuses to recognize its own nationality: Israeli Supreme Court says ‘Israeli’ nationality could endanger idea of Jewish state,Mondoweiss, Oct. 8, 2013); Tia Goldenberg, Court rules no such thing as Israeli nationality, Jfjfp (Oct. 10, 2013); Tia Goldenberg, Israeli court rejects Israeli nationality statusThe Times of Israel (Oct. 4, 2013); Alain Gresh, Juifs et pas IsraeliensLe Monde Diplomatique (Oct. 10, 2013); Florian Rötzer,Esgibtkeinisraelisches VolkTelepolis (Oct. 10, 2013); Ulrike Putz,BewohnerIsraelsdurfensichnicht “Israelis” nennenSpiegelOnline (Oct. 6, 2013); Batsheva Sobelman, No such thing as ‘Israel nationhood’, country’s Supreme Court saysL.A. Times (Oct. 3, 2013); Salman Masalha, Israeli Nationality – there’s no such animal, Haaretz (Oct. 27, 2013), (Isr.), For English version http://salmaghari-en.blogspot.co.il/2013/10/israeli-nationality-theres-no-such.html. 

3. HCJ Ornan, Supra note 1. 

4. idpar.a of Hon. Rubinstein opinion in HCJOrnan. 

5. Israel Nationality case, Supra note1, par. 18 of Hon. Fogelman opinion.

6. A line out of a popular Israeli verse; free translation from the Hebrew by this writer

7. HCJOrnan,Supra note 1,par. 11 of Hon. Meltzer opinion. 

8. CA 630/70 Tamarin v. State of Israel, 26(1) PD197[1972] (Isr.).

9. Israel Nationality case, Supra note 1.

10. Gross, Supra note2. Professor Gross also expressed this opinion at a panel discussion organized by the Israeli Liberal Forum in Tel Aviv, Dec. 11 2013 that was dedicated to the Ani Israeli verdict. 

11. See Basic Law: Israel as the Nation State of the Jewish People, 5773–2013, P/19/1550. In practice this proposal will change the definition of Israel as a “Jewish and Democratic state”, prioritizing Jewish-ness over democracy; NGO Law Proposal (Repair – Exceptions of Registration and Activity of an Association), 5770–2010, P/18/2456. By this proposal, an NGO will not be permitted to register if “there is reason to assume that the NGO is supplying information to a foreign state or is involved in legal procedures abroad targeting senior government officials or IDF officers on suspicions of conducting war crimes”; Contributors to the State Bill, 2013  5773–2013, P/19/1596. The purpose of this bill is to deprive Arab-Israelis citizens who due to historical and political reasons do not serve in the Israeli army.

12. For the full list of Israeli Discriminatory Laws see Adalah Legal Center for Arab Minority Rights in Israel.

13. E.g. by Sikkuy the Association for the Advancement of Civic Society. 

14. Sadly the number now is down to 20, as ex-minister and Knesset member, long-time human rights activist Shulamit Aloni passed away.

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