Israel’s nation-state law no different to most of Europe

France has one and only one official language, namely French. Germany has one and only one official language, mainly standard High German. Spain has one and only one official language, namely Castilian Spanish, despite the fact that Catalan is the native language of about 7 million citizens of Spain, while Basque is the mother tongue of nearly another million, and Galician is the native language of another 2.4 million.

Israel has just updated its Basic Law to make Hebrew its official language. Hebrew is the native language of the 80% Jewish majority and is spoken by virtually all of Israel’s non-Jewish citizens. This and related reforms simply put Israel’s constitution on par with that of most European countries, yet the new legislation has provoked accusations of “ethnocentrism” and “exclusionism.”

Why is this country different from all other countries?

Israel’s new basic law enshrines the “right to national self-determination of the Jewish people.” As Northwestern University law professor Eugene Kontorovich observed in a July 19 commentary in The Wall Street Journal, seven European constitutions have virtually identical constitutional definitions of nationhood.

Kontorovich writes: “Consider the Slovak Constitution, which opens with the words, ‘We the Slovak nation,’ and lays claim to ‘the natural right of nations to self-determination.’ Some provisions are found in places like the Baltics, which have large, alienated minority populations. The Latvian Constitution opens by invoking the ‘unwavering will of the Latvian nation to have its own State and its inalienable right of self-determination in order to guarantee the existence and development of the Latvian nation, its language and culture throughout the centuries’.” Latvia’s population is about 25% Russian.

Unlike the seven European countries that establish a state religion, the reformed Basic Law of Israel does not establish Judaism as an official religion. In that respect, it is much less “ethnocentric” than the prevailing standard in much of Europe. Some commentators claim that the Basic Law reforms stem from the Jewish religious concept of the divine election of Israel. The Jewish religion, though, plays no role in the amended Basic Law, which only addresses Jewish nationality.

Critics of the Israel reform complain that it calls for “the development of Jewish settlement.” As Kontorovich notes, that concept has been enshrined in international law since the League of Nations established a mandate for Palestine in 1922, which proposed to “encourage close settlement by Jews.”

Another controversial provision of the law declares “the development of Jewish settlement” to be a national value that the government should promote. It is understood to refer to encouraging population dispersion into the periphery of the country. This essentially restates policy adopted by the international community in 1922 in the League of Nations Mandate for Palestine, which sought to “encourage . . . close settlement by Jews.” It does not overturn the right of Israeli Arabs to create their own settlements that exclude Jews, established in a ruling by Israel’s Supreme Court (and the Supreme Court refused to grant a similar right to Jews).

Kontorovich notes that the Palestinian Authority has promulgated a death penalty for Arabs who sell land to Jews in Jerusalem, noting: “The new Basic Law does not even negate either of those injustices; it merely creates a normative counterweight.”

In short, the changes to Israel’s Basic Law amount to a diluted version of the national provisions of many European constitutions, not one of which has become a subject of global controversy during the whole of the postwar period.

Why the fuss?

Why the fuss over Israel? The answer is to be found in the deliberate ambiguity over Israel’s right to exist as a Jewish nation-state expressed by large parts of the international community. Among all the population transfers of the postwar period (Greeks and Turks, Germans and Poles, Tatars and Russians, Hindus and Muslims), the transfer of Jewish and Arab populations in and out of Israel during the late 1940s is the only one that was not resolved decades ago. Perhaps 800,000 Arabs left the Jewish zone during the 1948 Israeli War of Independence, and perhaps 900,000 Jews were expelled from Muslim countries in its aftermath.

The young Jewish State absorbed these immigrants with great difficulty. The Arabs who left Israel – perhaps half of whom themselves were first- or second-generation immigrants from other Arab countries – were not absorbed. Their refugee status was frozen (and passed on to their descendants, unlike all other refugees in the world). They were kept hostage to the Arab world’s rejectionist stance towards the Jewish State.

No real negotiations over a Palestinian state ever have occurred because no Palestinian leader will abandon the so-called Right of Return of the estimated 5 million descendants of the original refugees of 1948, perhaps 20,000 of which are still alive.

Because there are a very large number of Muslims and a very small number of Jews, most Western governments do not want to challenge the Arab hope that one day the Jewish State will disappear. That is why actions that are considered quite normal in Estonia or Slovakia are considered provocative in the case of Israel.

The same applies to America’s transfer of its embassy to Jerusalem. In no way does this prejudice Palestinian claims on East Jerusalem; on the contrary, as the Middle East Forum’s Daniel Pipes observes, it might set a precedent for an American embassy to a Palestinian state in the eastern part of the city. Nonetheless, it provoked consternation in much of the Muslim world, because normalization implies permanence for the Jewish State.

For much (but not all) of Muslim history, the presence of a vulnerable and dependent Jewish minority was acceptable, as proof that the wicked Jews were punished for falsifying the scriptures that Mohammed, the “seal of the prophets,” had restored. A prosperous, powerful and permanent Jewish State does not square with Muslim salvation history. Some Israelis, to be sure, also want to appease Muslim opinion and for this reason oppose the normalization of national identity in Israel.

There really is no point in tiptoeing around such illusions. Israel simply is too large and too powerful to treat as a passing anomaly. With a Jewish fertility rate of 3 children per female, Israel’s young population will be larger than Iran’s by the end of the present century (according to the constant fertility scenario published by the United Nations Population Fund).