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Jewish Settlements and Israeli Law

Azrieli_Tower_and_FlagWe are hearing a lot now about Israel’s creation of “Jewish” settlements on “Palestinian land.” These settlements are created, we are often told, to extend the “apartheid state” of Israel by squeezing out the local populations and establishing a superior Jewish ruling class. Typical here is CBS News anchor Bob Simon, who in January of 2009 described Israel as an “apartheid state.”

To understand this, it is instructive to read an Israeli Supreme Court ruling, the Decision on Katzir, dated March 8, 2000, which applies directly to the issue of land, and to the rights of Arabs under Israeli law.

A Jewish group, the Katzir Cooperative, which accepts only Jewish members, had received land from the Israeli government for a settlement in 1982. The group later tried to prevent an Arab couple from building a home in this settlement. The Arab couple sued. In the ruling, the Supreme Court summarized the basis of the suit as follows: “The Petitioners claim that the policy constitutes discrimination on the basis of religion or nationality and that such discrimination is prohibited by law with regard to State land.”

The Court heard the case, and ruled against the cooperative. This section from the ruling is direct and clear about the applicable principle:

The Court examined the question of whether the refusal to allow the petitioners to build their home in Kaztir constituted impermissible discrimination. The Court’s examination proceeded in two stages. First, the Court examined whether the State may allocate land directly to its citizens on the basis of religion or nationality. The answer is no. As a general rule, the principle of equality prohibits the State from distinguishing between its citizens on the basis of religion or nationality. The principle also applies to the allocation of State land. This conclusion is derived both from the values of Israel as a Democratic state and from the values of Israel as a Jewish state. The Jewish character of the State does not permit Israel to discriminate between its citizens. In Israel, Jews and non-Jews are citizens with equal rights and responsibilities. The State engages in impermissible discrimination even it if is also willing to allocate State land for the purpose of establishing an exclusively Arab settlement, as long as it permits a group of Jews, without distinguishing characteristics to establish an exclusively Jewish settlement on State land (“separate is inherently unequal”).

Next, the Court examined whether the State may allocate land to the Jewish Agency knowing that the Agency will only permit Jews to use the land. The answer is no. Where one may not discriminate directly, one may not discriminate indirectly. If the State, through its own actions, may not discriminate on the basis of religion or nationality, it may not facilitate such discrimination by a third party. It does not change matters that the third party is the Jewish Agency. Even if the Jewish Agency may distinguish between Jews and non-Jews, it may not do so in the allocation of State land.

On principle Israeli law is not religious; it is secular. Many of the settlements are Jewish, and we might assume that establishing Jewish enclaves in the Jewish state would be encouraged. But the law gives them no privileged status. The Jewish state is not akin to the Islamic state of Iran—in which clerics rule—or to that of Saudi Arabia, in which an ancient religious text is the law of the land. In Israel, all are equal in principle before the law. While under Israeli control, Jerusalem is an open city. People of all religions—and of no religion—can walk around freely, protected by Israeli law.

There is an important limitation here. Many of the areas that Israel was forced to take in self-defense, following the 1967 and 1973 attacks, are under military law, because Israel’s enemies have not ended the war, and because these areas have not been formally annexed. The source of this problem is the Arab leadership, who refused to accept an Arabic state next to Israel, as called for in the United Nations General Assembly Resolution 181, November 29, 1947, and rather declared war on Israel. Unremitting suicide attacks were the source of the later separation wall.  But this is all the more reason to end the war, eliminate the ambiguity, and extend Israeli law—and its principle of non-religious discrimination—fully into those areas.

Palestinian opposition to Jewish towns—as well as the ruling of the Israeli court—demonstrate where the commitment to apartheid lies, and it is not in Israel. Palestinian leaders do not thank Israel for its instructive example in separating politics from religion, while pressing to instill such principles in their own society. They rather condemn Israel, and demand its withdrawal under threat of force.

(The author thanks Boaz Arad for his assistance.)

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Image: Creative Commons by Fipplet

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