Foreign Policy / April 7, 2023
A state that considers equality an existential threat can never be a democracy.
In most societies, vulnerable minorities are the biggest proponents of strong and independent courts, as it is the judiciary that often shields these groups from the excesses of state power. In Israel, a state that defines itself as Jewish, no minority group is more vulnerable than non-Jewish Palestinian citizens. Yet Palestinian citizens of Israel—who comprise about 20 percent of its citizen population—have been virtually absent from the massive protests that have rocked the country in recent weeks. These demonstrations have ostensibly sought to protect Israel’s courts and save its democracy.
Israeli Prime Minister Benjamin Netanyahu’s far-right coalition is seeking to weaken Israel’s judiciary by granting the government more control over appointments as well as the power to overrule Supreme Court decisions with a simple parliamentary majority. Many right-wing Israelis see the court—which has at times blocked settlement expansion in the occupied West Bank—as an obstacle to their ambitions to reorder Israeli society in a more religious and nationalist direction. But for Palestinian citizens of Israel, the court is the core of a system that upholds Jewish supremacy—and thus is an obstacle to their political equality.
The same week that mass Israeli mobilization forced Netanyahu to pause his government’s judicial overhaul legislation, Palestinians marked Land Day. It is an annual commemoration of the March 30, 1976, massacre of Palestinian citizens of Israel who were protesting the state’s appropriation of their land by the Israeli military and police. Six Palestinians were killed, and approximately 100 more were injured. Land Day unites Palestinians on both sides of the green line in their struggle against Israeli efforts to force them off their land and commemorates those who gave their lives in defense of it.
On Land Day in 2018, Palestinians in Gaza initiated the Great March of Return, an effort to call attention to the rights of Palestinian refugees to return to their ancestral towns and villages. But even before the march began, Israel’s defense minister deployed 100 snipers to the fence around the besieged strip with orders to fire. By the end of the mobilization, live Israeli fire had killed more than 200 Palestinians and injured thousands, many of whom lost limbs. One Israeli sniper boasted about the 42 kneecaps he blew out that day while firing on Palestinian protesters.
The very Supreme Court that Israeli Jews are protesting to save has been the state’s most loyal partner in enabling this sort of violent repression and abuse against Palestinians.
It was this court that approved the military’s use of live fire against protesters in Gaza in 2018. This court has enabled the use of torture by the Israeli state and has never denied a request by Israel to hold Palestinians without trial or charge, the Association for Civil Rights in Israel told Haaretz. Some of its decisions from the past decade allowed the state to carry out the ethnic cleansing of the occupied West Bank area of Masafer Yatta, confiscate Palestinian property in East Jerusalem, revoke citizenship from those it deems disloyal, deny citizenship to Palestinian spouses of Israelis, segregate Jewish and Palestinian communities within Israel, and permit the state to hold the bodies of alleged Palestinian attackers as political bargaining chips.
For Palestinians, protesting the Israeli government can be a death sentence—whether they are citizens of Israel or not. They certainly aren’t interested in putting their lives on the line to save the very court that allows the state to kill them.
Some of the best evidence of this blatant differential treatment was on display this week. Despite masses of Israeli Jews filling city streets and blocking highways, police repression was negligible compared to the size of the protests; where it did happen, it involved nonlethal means. Yet when Palestinian worshippers stayed the night in Jerusalem’s Al-Aqsa Mosque to worship for Ramadan—as is customary during the Islamic holy month—police brutally beat them. Some 50 Palestinians were injured in the violent crackdown, and 350 were arrested. On Friday, Israel launched airstrikes on Gaza and an area near a Palestinian refugee camp in southern Lebanon in response to rockets it blamed on Hamas; Hamas says it launched the rockets in retaliation for Israeli security forces’ actions at Al-Aqsa. Meanwhile, Jewish religious fanatics empowered by Israel’s far-right government have violated the status quo at the holy site to little consequence.
While the protests in Israel have barely included Palestinians, they are very much about Palestinians. One reason for the ongoing power struggle between the branches of Israel’s government is that the state lacks a constitution. Such a charter was not adopted at Israel’s 1948 founding, or at any point thereafter, in part because limiting state power—for example, by enshrining equal rights—would have imperiled Israel’s ability to carry out its most important project: the continued colonization of Palestine.
The single biggest catalyst for the long-standing right-wing effort to rein in the power of Israel’s courts was the Supreme Court’s interpretation of the closest thing Israel has had to a bill of individual rights and freedoms—the 1992 Basic Law on human dignity. The law’s drafters deliberately excluded the right to equality as well as other important rights, such as freedom of religion and speech. But the Supreme Court nevertheless decided to interpret the human dignity provision as guaranteeing the right to equality.
Though that sounds like a good thing for Palestinians, the court adopted an interpretive practice around the validity of Israeli laws that also required it to take into consideration how new or proposed legal measures might affect the values of a state defined as “Jewish and democratic.” In other words, the court’s ability to read equality as a right was limited by the question of whether upholding equality would challenge Israel’s Jewish identity.
The logical and practical outcome of this judicial practice is that the idea of equality extends least to those citizens who are not Jewish. But even this second-class status does not satisfy Israel’s religious nationalists, who still see the court as a roadblock in their agenda to annex more Palestinian land and turn Israeli society in a more religious direction.
The Supreme Court’s decisions on two recent laws make it clear that it is anything but a safeguard of democracy. The court upheld the 2018 Basic Law, which defined Israel as the nation-state of the Jewish people and declared that only the Jewish people had rights to self-determination in Israel. But when Palestinian citizens of Israel proposed a law that called for a “state of all its citizens,” the Knesset considered it too radical to even be formally introduced—and the court agreed.
Many observers do not fully understand the root causes of Israel’s turmoil because they have failed to confront the one-state reality that exists for Israelis and Palestinians between the Jordan River and the Mediterranean Sea. When analysts remain entrapped in an obsolete two-state paradigm—a tendency I called green-lined vision—they push Palestinians out of the picture and see Israel at worst as a flawed democracy. Only when they expand their scope to include Palestinians—as many human rights groups, including Israel’s B’tselem, Amnesty International, and Human Rights Watch have done—does the crime of apartheid and Israeli courts’ role abetting it become apparent.
The demonstrations that have rocked Israel in recent weeks are largely a struggle between proponents of two different versions of apartheid—one that is unabashed and right-wing in nature and another that seeks to keep hiding behind a fig leaf of liberalism.
Whatever the outcome of these protests, a state that considers equality an existential threat can never be a democracy. The reason Palestinians are not participating is because we have known this all along.
Yousef Munayyer is a Palestinian citizen of Israel and a senior fellow at the Arab Center Washington DC