“Jewish Nationality,” “National Institutions” and Institutionalized Dispossession
What is “Jewish nationality” and what does it mean for Palestinian refugees, IDPs and Palestinians still remaining in their homes and lands?
“Jewish nationality” is a concept arising from Zionist ideology that has evolved in Israeli law pertaining to civil status, but which also lies at the base of official policy and practice. “Jewish nationality” status is a key to understanding the State of Israel’s ideology and machinery for acquiring the properties and other assets of the indigenous Palestinian people. Thus, religious affiliation, as “Jewish nationality” status is the criterion for determining who benefits from the economic and cultural assets of Palestine. Consequently, it also determines who loses in the material, social, cultural and political sense. It is a far more fundamental criterion for distributing rights and privileges than military service, mere Israeli citizenship, or even temporal connection with the country. The ideological criterion of “Jewish nationality,” therefore, is the lynch pin of the Zionist colonization project.
Israel also applies this special status extra territorially through its parastatal “national” institutions (World Zionist Organization/Jewish Agency, Jewish National Fund, and their affiliates). Those institutions have registered and operated as charities around the world, while simultaneously functioning as extensions of the State of Israel, under Israel’s Status Law (1952) and Covenant [with] the Zionist Executive (1952). Central to the purpose of these parastatal institutions is encouraging Jewish persons (considered as “Jewish nationals”) to emigrate to Palestine/Israel from their home countries. These institutions also collect tax-exempt contributions in those same countries for the establishment and development of Jewish settler colonies across over historic Palestine.
“Jewish nationality” as law
NGOs Petition Israel Supreme Court to Freeze
JNF Land Tenders The Jewish National Fund (JNF) has agreed to a temporary freeze on tenders for land in the north of Israel and the Galilee after several NGOs filed petitions against discriminatory JNF practice of allocating land only to Jews. Since 1948 large tracts of Palestinian-owned land, including refugee properties, have been confiscated or otherwise appropriated under law and taken into the possession of the state or Zionist institutions, such as the Jewish Agency and the Jewish National Fund, for exclusive use by Jews. These laws and policies have brought about state control of over 93% of the land in Israel. Israeli law defines 'Israel lands' to include land owned by the JNF. Close to two million dunums of the land currently owned by the JNF was transferred to it by the state in 1949 and 1953. This transfer gave a special status to the JNF under Israeli law. The JNF enjoys a huge influence over land distribution policy in Israel. For example, half of the ILA Council, which manages 'Israel lands' and determines land policy in Israel must be nominated by the JNF. As of 2003, approximately 2.5 million dunums of land in Israel were owned by the JNF, which equates to 13 percent of the land in Israel. On 13 October 2004, Adalah – The Legal Center for Arab Minority Rights in Israel, submitted a petition against the Israel Lands Administration (ILA), the Jewish National Fund (JNF) and the Minister of Finance (MOF), demanding the cancellation of an ILA policy and a regulation promulgated by the MOF, which effectively permits the marketing and allocation of lands through bids open only to Jews. An earlier petition as filed by the Arab Center for Alternative Planning and the Association for Civil Rights in Israel. Source: Adalah – The Legal Center for Arab Minority Rights in Israel. See, www.adalah.org. |
In addition to the consequences for Palestine, the activities of
these “national” institutions also vitiate the rights of other
sovereign States, inciting their Jewish citizens to emigrate and
pledge allegiance to a foreign country (Israel) and extending an
additional, alien civil status to them by claiming them as subjects
under the legal jurisdiction of Israel. Although Israel and its
“national” institutions seek to apply “Jewish nationality” extra
territorially, it is not recognized as a concept of international
law.(1)
Israeli law, official institutions or records do not recognize an
“Israeli nationality” status. Israel’s High Court already has
confirmed that no such status exists. Whereas the State of Israel
has established only Israeli citizenship. The only nationality
conferring automatic status to enjoy all civil, political,
economic, social and cultural rights in Israeli law is “Jewish
nationality.”
Anyone considered eligible for “Jewish nationality” can realize
this preferential status on the basis of: (a) a bona fide claim to
profess the Jewish religion (and being born of a Jewish mother) and
(b) arrival in a place under the jurisdiction or effective control
of Israel. By contrast, a citizen of the State of Israel who is not
bona fide as Jewish can never hold this status, even if s/he is
born within the country.
Implementing “Jewish nationality”
A practical feature of “Jewish nationality” is that Israel and its
“national” (parastatal) institutions, including the World Zionist
Organization/Jewish Agency (WZO/JA) and Jewish National Fund (JNF),
apply this status both in developing and distributing confiscated
Palestinian assets inside Israel and the occupied Palestinian
territory, as well as through their extraterritorial activities.
The scope of this program is vast. Mobilizing Jewish
settlers/immigrants and financial resources from their operations
in some 50 other countries, the “national” institutions function
tax-free outside Israel, while performing as part of a foreign
State (linked by the laws cited above).
Historically, the two sister organizations of WZO/JA, as
institutional pillars of political Zionism, have discretely divided
labor, if not actual personnel or objectives. The WZO has typically
mounted more overtly colonist activities (focusing primarily on
projects in the OPT since 1971); while the “Enlarged” JA was
established early in Zionist history (1929) to appeal to the
resistant “non-Zionist” Jews, whom the Zionists saw as nonetheless
useful in responding to appeals for contributions to the same
colonial program, but with a less-objectionable title. The JA
primarily specializes in projects inside the Green Line. Despite
these and other cosmetic differences, both organizations, along
with their common partner, the Jewish “National” Fund and its
fund-raising affiliates, have worked hand in hand at acquiring and
managing the properties and national assets of the dispossessed
Palestinian people.
These institutions claim to be both public and private institutions
at the same time, just as they claim to be charities extra
territorially while operating as parastatal institutions in
Israel/Palestine. While such structural duplicity may be sufficient
legal grounds for concern, their actual functions are more serious.
Each and all of the “national institutions” is dedicated to
carrying out population transfer and implantation of settlers,
practices that the Nuremberg Tribunal (1945) and the Rome Statute
on the International Criminal Court (1998) define as crimes of war
and crimes against humanity.(2)
Israelis challenging “Jewish nationality”
Recognizing the contradictions embodied in “Jewish nationality,”
Jewish-Israeli citizen George Rafael Tamarin petitioned
unsuccessfully to have the official registration of his nationality
changed from “Jewish” to “Israeli.” The High Court then ruled that
“there is no Israeli nation separate from the Jewish nation ...
composed not only of those residing in Israel but also of Diaspora
Jewry.” Then President of the High Court Justice Shimon Agranat
explained that acknowledging a uniform Israeli nationality “would
negate the very foundation upon which the State of Israel was
formed.”
Nationality status in Israel is not linked to origin from, or
residence in a territory, as is the norm in international law.
Rather, the nature of civil status in Israeli legal system
establishes theocratic criteria for the enjoyment of full rights.
The Israeli Law of Citizenship (Ezrahut), often mistranslated in
official English editions as “Nationality Law,” only establishes a
civil status, however distinct from—and inferior to—“Jewish
nationality.”
In April 1999, Israeli citizen and “Jewish national” Mr. Avner
Erlich, requested that the Central Elections Committee (CEC) ban
the National Democratic Party (NDA) list from running in the 1999
Knesset elections. He claimed that in a May 1998 Ha'aretz interview
that NDP candidate Dr. `Azmi Bishara denied the existence of the
State of Israel as the State of the Jewish people by saying:
"Judaism is a religion, not a nationality; and the Jewish public
around the world has no national status whatsoever … From a
historical perspective, the idea of a state of the Jews is, in my
opinion, illegitimate; and if you ask me, I am not prepared to give
Israel historical legitimacy." Mr. Avner Erlich, argued that Dr.
Bishara's positions violated the 1985 amendment to The Basic Law:
The Knesset, which provides in Section 7A that: "A list of
candidates shall not participate in the elections for the Knesset
if its aims or actions, expressly or implicitly (1) deny the
existence of the State of Israel as the State of the Jewish people,
(2) deny the democratic nature of the state, or (3) incite
racism.
The CEC ultimately decided by a 21–4 majority (with one abstention)
to reject Mr. Erlich's request. He submitted a petition to the
Supreme Court, which rejected Mr. Ehrlich’s petition for lack of
standing. Nonetheless, the Court admonished Dr. Bishara and the NDA
party that they "enjoyed the benefit of the doubt" from the CEC and
came "dangerously close to the line that should not be
crossed."
Then Attorney General Elyakim Rubenstein attacked Dr. Bishara in
articles supporting attempts to delegitimize the NDA party’s
slogan: "A State for All Its Citizens." Mr. Rubenstein has written
that "Anyone who calls for changing Israel to 'A State for All Its
Citizens' means, in reality, to change the Jewish character of the
State. It is our duty to fight that wholeheartedly, without
compromise."(3)
For indigenous Palestinian citizens of Israel, `Adil and Iman
Qa`dan of Baqa al-Gharbiyya, the High Court judgment in their favor
for a place to live in a new settlement represented one symbolic
step toward equal economic, social and cultural rights for Israel’s
citizens without “Jewish nationality.” They sought to build their
home in Jewish Agency-supported Katzir settlement, the locality of
their choice. The Supreme Court ruled, four to one, that:
“The State of Israel must consider the Petitioners' request to
acquire land for themselves in the settlement of Katzir for the
purpose of building their home. The State must make this
consideration based on the principle of equality, and considering
various relevant factors, including those factors affecting the
Jewish Agency and the current residents of Katzir.”
In the breakthough judgment, the Court applied this principle to
the allocation of State land by the Jewish Agency and others. While
the over-riding human rights principle of equal treatment prohibits
the State from discriminating among citizens on the basis of
religion or nationality; however, the parastatals “national
institutions” do so as a charter-based principle.
The Court’s recognition that discrimination had taken place on the
basis of “nationality” is progress indeed toward identifying the
heart of the system of institutionalized discrimination that would
have to be addressed in any eventual democratization of the State
of Israel, in the longer term, and the defence of the national as
well as individual rights of the Palestinian Arab citizens of
Israel, in the interim. However, the ruling in the Qa`dan case does
not apply to other citizens, nor does it call for disestablishing
nationality-based discrimination in general or the need for the
Jewish Agency and other organizations to reform their
institutionalized discrimination against non-Jews, in general, or
indigenous Palestinian citizens, in particular. Despite their 2000
litigation victory, the Qa`adans have not yet been able to access a
plot in Katzir to build their home to this day.
Israel’s Interior Ministry maintains a list of 137 nationalities
for enumeration purposes, but none is recognized as legal status
for enjoying rights in the country. Of all these descriptive
nationalities, "Israeli" is not one of them. Repeating the
challenge that the State establish a nondiscriminatory civil status
applied to all citizens, 38 prominent Israelis petitioned the High
Court in December 2003. The group, represented by Attorney Yoela
Har-Shefi, is headed by Professor Uzi Ornan, of the Hebrew
University and the Technion. Other participating intellectuals,
academics and scientists include Shulamit Aloni, Uri and Rahel
Avneri, Yehoshua Sobol, Gavriel Solomon, Yigal Eilam, Meron
Benvenisti, Yehoshua Porat and Oren Yiftachel. Also in the group is
singer Alon Olearchik, formerly of the army Nahal entertainment
group and the Israeli rock band Caveret. His mother is Christian
and father Jewish; therefore, he is not Jewish and cannot hold
“Jewish nationality.” Adil Qa'adan also has joined this group to
obtain a nationality status registered as “Israeli."(4) In September 2004, the High Court remanded the
case to the district court, in an apparent move to buy time and
exhaust the petitioners by bogging down the lower courts with this
constitutional question. The State response has been most
revealing, claiming that the petitioners’ appeal “undermines the
very logic of the State as Jewish.”
Thus, the State’s position has validated the premise that Jewish
and democratic are logically incompatible criteria. This is
unfortunate, particularly because it is should not be taken that
the “Jewish” nature of the “nationality” discrimination is
inherently anti-democratic, but the discriminatory and
dispossessing function of an exclusive “nationality” that makes it
so.
Challenging the “national institutions”
The Zionist national institutions contain three fundamental
contradictions from a moral and legal standpoint: (1) they
institutionalize a form of material discrimination against the
indigenous people of Palestine on the basis of an ideologically
grounded “nationality,” (2) they are dedicated to operations
constituting violations enumerated in the Nuremberg Tribunal and
Rome Statute on the International Criminal Court and (3) they are
organically linked to the State and Government of Israel as the
constitutive authority that governs them, while claiming to be
tax-exempt charities.
The paradox within this last contradiction was the subject of
administrative hearings before the United States Department of
Justice in 1969–70. The Department found that, since the Zionist
Organization/Jewish Agency were subject to effective Government of
Israel control, neither they nor their foreign principal were the
private voluntary organizations that they claimed to
be.(5) This situation persists now
under a “reconstituted” registration; however, the functions remain
the same.
The persistence of institutionalized discrimination has been the
subject of serial reviews of Israel under its treaty obligations as
a party to the International Covenant on Economic, Social and
Cultural Rights. In 1998, its independent treaty-monitoring body
noted with grave concern that:
the Status Law of 1952 authorizes the World Zionist
Organization/Jewish Agency and its subsidiaries, including the
Jewish National Fund, to control most of the land in Israel, since
these institutions are chartered to benefit Jews exclusively.
Despite the fact that the institutions are chartered under private
law, the State of Israel nevertheless has a decisive influence on
their policies and thus remains responsible for their activities. A
State party cannot divest itself of its obligations under the
Covenant by privatizing governmental functions. The Committee takes
the view that large-scale and systematic confiscation of
Palestinian land and property by the State and the transfer of that
property to these agencies constitute an institutionalized form of
discrimination because these agencies by definition would deny the
use of these properties to non-Jews. Thus, these practices
constitute a breach of Israel's obligations under the
Covenant.(6)
The Committee went on to urge the State party to review the status
of its relationship with the World Zionist Organization/Jewish
Agency and its subsidiaries, including the Jewish National Fund,
with a view to remedying these problems in complying with its human
rights Covenant.(7) This situation went
unaddressed at the time of its next review (2003), and the
Committee on Economic, Social and Cultural Rights expressed
particular concern about the status of “Jewish nationality”, which,
it observed:
is a ground for exclusive preferential treatment for persons of
Jewish nationality under the Israeli Law of Return, granting them
automatic citizenship and financial government benefits, thus
resulting in practice in discriminatory treatment against non-Jews,
in particular Palestinian refugees.(8)
While the institutionalized forms of discrimination inside the
Green Line have gone untouched in the political bodies of the
United Nations, such contradictions in practice have not escaped
the attention of the neutral and legal bodies. With a view to the
causes, rather than mere symptoms, of discrimination, we are
confronted with “Jewish nationality” status and its implementing
institutions, posing the fundamental obstacle to both democracy and
nondiscrimination in the State concerned.
Joseph Schechla is coordinator of the Habitat International
Coalition’s Housing and Land Rights Network, based in Cairo,
Egypt.
Endnotes:
(1) See, for example, letter of U.S.
Assistant Secretary of State Phillips Talbot to American Council
for Judaism's Executive Vice President Rabbi Elmer Berger,
affirming that the United States "does not regard [Israel's
extraterritorial] ‘Jewish people’ concept as a concept of
international law." Reprinted in W. Thomas Mallison, Jr., "The
Zionist-Israel Juridical Claims to Constitute the ‘Jewish People’
Entity and to Confer Membership in It: Appraisal in Public
International Law," 32 The George Washington Law Review 5 (1964),
p. 1075.
(2) Article 7: Crimes against humanity: 1.
For the purpose of this Statute, "crime against humanity" means any
of the following acts when committed as part of a widespread or
systematic attack directed against any civilian population, with
knowledge of the attack:…(d) Deportation or forcible transfer of
population…War crimes 1. The Court shall have jurisdiction in
respect of war crimes in particular when committed as part of a
plan or policy or as part of a large-scale commission of such
crimes. 2. For the purpose of this Statute, "war crimes" means: (a)
Grave breaches of the Geneva Conventions of 12 August 1949, namely,
any of the following acts against persons or property protected
under the provisions of the relevant Geneva Convention:…(iv)
Extensive destruction and appropriation of property, not justified
by military necessity and carried out unlawfully and
wantonly;…(vii) Unlawful deportation or transfer or unlawful
confinement…
(3) Adalah News Update (14 March 2002).
(4) Moshe Gorali, “So this Jew, Arab,
Georgian and Samaritan go to court...The state denies there is any
such nationality as `Israeli',” Ha’aretz, 28 December 2003.
(5) Sally V. Mallison and W. Thomas
Mallison, The Palestine Problem in International Law and World
Order. London: Longman, 1986, pp. 126–41.
(6) Concluding Observations of the Committee
on Economic, Social and Cultural Rights: Israel. UN Doc.
E/C.12/1/Add.27, 4 December 1998, para. 11.
(7) Ibid., para. 35.
(8) Concluding Observations of the Committee
on Economic, Social and Cultural Rights: Israel. UN Doc.
E/C.12/1/Add.90, 23 May 2003, para. 18.