Professor Paul Eidelberg
I. Introduction:“Bibi or Tibi”
This essay poses the dilemma of Arab-Islamic citizenship in a supposed-to-be-Jewish
State. This dilemma was implied in the Likud Party’s 1996 campaign slogan
“Bibi or Tibi.”
. . . . . . . . . . . . .
“Bibi,” i.e., Benjamin Netanyahu, and “Tibi,” i.e.,
Ahmed Tibi,” are both citizens of Israel, the former a Jew, the latter
an Arab. That Tibi, a citizen of Israel, could be an adviser to Yasir Arafat,
the head of a criminal organization still classified as such under Israeli law,
is a pathological phenomenon. Such a thing can only occur in a country suffering
from political schizophrenia, a country lacking a strong sense of national identity.[1]
Stated more simply: the choice between “Bibi” and “Tibi”
was actually a choice between a Jewish State and an Arab-Islamic state.
That Israel should have been faced with a choice between “Bibi”
and “Tibi” suggests that Israel has become a bi-national state.
Indeed, that portentous slogan betrays the fact that Israel is being Arabized,
and not only because the birthrate of Israel’s Arab citizens is more than
twice that of Jews. Israel is being Arabized because of a long-standing lack
of nerve on the part of Israel’s political elites, in consequence of which
an increasing number of Arab citizens vote and hold office in what is supposed
to be a Jewish State. This life-and-death issue has never been addressed by
any Israeli government. The issue of Arab citizenship in Israel is of world-historical
significance. To face this will require uncommon courage and wisdom.
. . . . . . . . . . . . .
Dr. Tibi boasted before the 1996 national elections that Arabs would make Israel’s
next Prime Minister. They almost did. 95% of Israel’s Arab citizens voted
for Shimon Peres, who lost to Mr. Netanyahu by less than 30,000 votes (of three
million cast). In fact, however, the Arabs had already made two Israeli prime
ministers: Yitzhak Rabin in 1992, and his successor, Peres in 1995. Both owed
their premiership to the two Arab parties in the Knesset.
The danger posed by the Arab vote was always obvious to all but fools. Now even
the benighted may be enlightened: witness the slogan “Bibi or Tibi.”
Twenty years ago, when the Labor Party was not dependent on the Arab vote, Israel’s
then Prime Minister Yitzhak Rabin felt obliged to warn:
“The majority of the people living in a Jewish State must be Jewish. We
must prevent a situation of an insufficient Jewish majority and we dare not
have a Jewish minority. ...There is room for a non-Jewish minority on condition
that it accept the destiny of the State vis-à-vis the Jewish people,
culture, tradition, and belief. The minority is entitled to equal rights as
individuals with respect to their distinct religion and culture, but not more
than that.” [Speech to Israeli high school seniors in Tel Aviv, May 6,
1976]
Mr. Rabin obviously had in mind Israel’s Arab minority. But like all Israeli
prime ministers, Rabin lacked the wisdom and courage to confront this lethal
problem.
The problem is embedded in the 1948 Proclamation of the Establishment of the
State of Israel which prescribes “complete equality of … political
rights to all inhabitants irrespective of religion …” Israel’s
Supreme Court has sanctified this egalitarian and culturally neutral aspect
of the Proclamation as the “credo” of the State, even though this
indiscriminate egalitarianism and cultural neutrality contradict the only justification
for Israel’s re-establishment—its raison d’être—as
a Jewish State.
Israel’s leaders are trapped in a basic principle of Contemporary Democracy,
the principle of one adult/one vote.” In the absence of rational and ethical
constraints, this principle can actually unhinge and undermine a country by
enfranchising all its inhabitants regardless of their political loyalties and
religious convictions. Yet the principle appears so rational and so moral that
no one dares question it. Fortified by this principle, members of any ethnic
group can vote and hold office in a state even if the group is intrinsically
hostility to the state which confers this boon of citizenship.
Reason and courage and even the instinct of self-preservation have deserted
Israel, whose leaders have endowed Arab inhabitants with the right to vote on
the one hand, while exempting them from military service for security reasons
on the other. These Arabs were conquered in war and have no love for their conquerors—surely
a normal attitude. Only smug and puerile Jews were shocked during the intifada
when these Arab citizens screamed “Itbach el Yahud”—“Slaughter
the Jews.” So deeply ingrained is their hatred of Jews that these same
Arabs cheered Saddam Hussein even though he threatened to incinerate Israel,
themselves included. Who but the deaf and the blind do not know that Israel’s
Arab citizens, who enjoy all the rights of Jews, do not accept, in Rabin’s
words, “the destiny of the State vis-à-vis the Jewish people”—and
why should they? Israel is becoming Palestine, which is why its Arab citizens
identify themselves as “Palestinians.”
And yet, as I shall now show from the perspective of citizenship, Israel has
been “Palestine” ever since its government enacted the Nationality
Law of April 1, 1952.
II. Palestine Citizenship
Palestine citizenship was established by the League of Nations on July 24, 1922,
when the administration of Palestine, which formerly belonged to the Turkish
Empire, was entrusted to Great Britain as the Mandatory Power. The Mandate affirmed
the Balfour Declaration of 1917 which favored the establishment in Palestine
of a national home for the Jewish people.
Under Article 4 of the Mandate, an appropriate Jewish agency was to be “recognized
as a public body for the purpose of advising and cooperating with the Administration
of Palestine in such economic, social and other matters as may effect the establishment
of the Jewish national home …” The Administration of Palestine was
instructed, under Article 6, to “facilitate Jewish immigration …”
Article 7 required the Administration of Palestine to enact a nationality law.
The law was to include “provisions framed so as to facilitate the acquisition
of Palestinian citizenship by Jews who take up their permanent residence in
Palestine.”[2]
In pursuance of Article 7, the Palestine Citizenship Order was issued in 1925,
and this order, as amended from time to time, regulated Palestine citizenship
for the remaining twenty-three years of the Mandate. Subject to the right to
opt for Turkish and other nationalities, all Turkish subjects—Jew and
non-Jews—habitually resident in the territory of Palestine became, on
August 1, 1925, Palestine citizens. Other Turkish nationals born within Palestine
could also acquire Palestine citizenship even though they had not been previously
resident in Palestine.[3]
Palestine citizenship could also be acquired by birth. Any person born to a
father who was a Palestine citizen himself acquired Palestine citizenship whether
or not the birth took place in Palestine. Moreover, any person born within Palestine
who did not by his birth acquire the nationality of any other Sate was deemed
to be a Palestine citizen. Finally, Palestine citizenship could be acquired
by any person by means of naturalization, the main precondition being a period
of residence in Palestine.[4]
These methods of obtaining Palestine citizenship differ in no essential way
from the methods by which any person, Jewish or non-Jewish, can obtain citizenship
under Israel’s 1952 Nationality Law (sections 3-5). Thus: (1) “Any
person who, immediately before the establishment of the State, was a Palestine
citizen, shall become an Israel national”; (2) “A person born whilst
his father or mother is an Israel national shall be an Israel national from
birth”; (3) “A person born after the establishment of the State
in a place that was Israel territory on the day of his birth and who never possessed
any nationality during the period between his 18th and 21st birthdays and has
been an inhabitant of Israel for five consecutive years immediately preceding
the day of the filing of his application”; (4) “A person of full
age … may obtain Israel nationality by naturalization if … he has
been in Israel for three years out of five years preceding the day of the submission
of his application.”[5]
The reversion of Israel to Palestine via the concept of citizenship is not affected
by the Law of Return. Enacted by the Knesset in 1950, the Law of Return, by
which “Every Jew has the right to immigrate to this country,” has
been deemed an immigration law, not a nationality law. “There is no need
to argue at length,” said Supreme Court Justice Landau, “in order
to show that the Law of Return does not deal with nationality at all but with
the right to immigrate to and settle in Israel.”[6]
Of course the Law of Return was decisive for the development of a Jewish majority
in this country. But under section 2c2 of the nationality Law, Jews exercising
the right to immigrate to Israel may opt not to become Israeli citizens. On
the other hand, and as we shall see later, political and legal commentators
have failed to discern that the rationale of the Law of Return, as opposed to
the language of the law itself, not only contradicts the culturally neutral
principle of political equality prescribed in the Proclamation of the State,
but also the Nationality Law which, in terms of the citizenship issue, is responsible
for Israel’s reversion to Palestine.
Without recognizing this reversion, M.D. Gouldman raises the fascinating question:
“What had been the fate of Palestine citizenship immediately following
the establishment of the State? Had it vanished with the Mandate, leaving former
Palestine citizens (Jews and non-Jews) stateless unless they happened to be
possessed of some foreign nationality? Section 11 of [Israel’s] Law and
Administration Ordinance, 1948 provided that the law existing in Palestine on
14th May 1948 should remain in force … subject to such modifications as
might result. From the establishment of the State and its authorities.’
Did, therefore, former Palestine citizens—or at last those that remained
in Israel—automatically become citizens of the new State of Israel even
though no nationality law had yet been enacted?”[7]
“The latter view,” according to Gouldman, “has the advantages
of continuity and the prevention of statelessness.” This was the position
taken by Justice Zeltner in a 1951 decision of the Tel Aviv District Court,
A.B. v. M.B., reversing a previous decision of the same court, that a former
Palestine citizen who was, in the absence of an Israel nationality law, stateless:[8]
It seems to me … that the point of views according to which there are
no Israel nationals is not compatible with public international law. The prevailing
view is that, in the case of transfer of a portion of territory of a State to
another State, every inhabitant of the ceding State becomes automatically a
national of the receiving State…. So long as no law has been enacted providing
otherwise, my view is that every individual who, on the date of the establishment
of the State of Israel, is also a national of Israel. Any other view must lead
to the absurd result of a State without nationals—a phenomenon the existence
of which has not yet been observed.[9]
Obviously this decision is favorable to indiscriminate application of the principle
of one adult/one vote, which principle, as previously indicated, does not take
cognizance of a citizen’s consent or loyalty to the State. Surely Justice
Zeltner was aware of the fact that the Arabs of Palestine never consented to
the establishment of the State of Israel. Indeed, they violently opposed the
Balfour Declaration and never consented to The League of Nation’s designation
of Great Britain as the Mandatory Power.
We have here a bizarre phenomenon. Government by the consent of the governed
is a basic democratic principle. So too is the principle of one adult/one vote.
The Arabs of Israel enjoy the latter, not the former. From an abstract or formalistic
viewpoint, one might argue that by voting in a national election, a person tacitly
consents to the existence of the State of which he is a citizen. This view trivializes
the concept of citizenship or of nationality, as well as the religious convictions
and hostility of the Arabs in question.
Justice Zeltner’s position—which reflects a vacuous cosmopolitanism—was
rejected by Justice Kennet in Oseri v. Oseri, a 1953 decision of the Tel Aviv
District, a decision rendered after the enactment of the Nationality Law:
“Citizenship is the grant of a personal status to the citizen and it creates
a bond of loyalty between the State and the national. The loyalty which had
been created by the [Palestine Citizenship Order] was towards the Mandatory
Power, which has now disappeared, and it is difficult to reach a deduction that
the very law which established a bond of loyalty between the Mandatory Power
and its inhabitants can create a new nationality and a new bond of loyalty between
the State of Israel and its inhabitants. Such a bond cannot automatically devolve.”[10]
Accordingly, Palestine citizenship did not metamorphose into Israeli nationality
with the termination of the Palestine Mandate and the creation of the State
of Israel. The parties to the action, former Palestine citizens, were therefore
held to be stateless during the period between the establishment of the State
and the entry into force of the Nationality Law.
But if loyalty, as Justice Kennet emphasizes, is an essential ingredient of
citizenship, the Nationality Law did not, in his words, “create a new
nationality and a new bond of loyalty between the State of Israel and its inhabitants
[especially Arabs].”
The Nationality Law itself acknowledges loyalty as an essential element of citizenship
and nationality. Part I, section 5c states that prior to the grant of citizenship
by naturalization, the applicant must make the following declaration: “I
declare that I will be a loyal national of the State of Israel.” Moreover,
Part II, section lla3 stipulates that the citizenship of any Israel national
may be revoked if he “has committed an act involving disloyalty to the
State.” To my knowledge this provision has never been enforced against
any Arab citizen of Israel (even though many have engaged in terrorist attacks
against Jews). Admittedly (unlike such attacks) the phrase “act involving
disloyalty” is judicially vague. But this does not refute our reversion
to Palestine thesis.
By reverting in principle to Palestine citizenship under the Mandate, the authors
of the Nationality Law ignored the pogroms Arabs committed against Jews during
the Mandate period. Did these Jewish law-makers believe that the new State of
Israel could pacify its Arab inhabitants and make them renounce their loyalty
to the “Arab Nation” or Islam? Did these self-effacing Jews think
they could make these proud members of a proud Arab-Islamic civilization loyal
citizens of a despised and hated Jewish State? Did these Jews think that they
could buy the loyalty of Arabs by raising their standard of living in a new
and prosperous Jewish country?
The 25-year period of the Mandate mocks such wishful thinking. The progress
of Jews during that period immensely improved the economic standards, health,
and longevity of Palestine’s Arab citizens. Not only did their per capita
income greatly exceed that of any Arab country, but the rate of natural increase
of Arabs in western Palestine was the highest in the Arab world. The rapid growth
of Arab wages and population in Palestine was particularly striking in those
areas of Jewish settlement and development. This was acknowledged by the British
Peel Commission report of 1937. And yet, the report noted that, “Although
the Arabs have benefited from the development of the country owing to Jewish
immigration, this has had no conciliatory effect. On the contrary. Improvement
in the economic situation in Palestine has meant the deterioration of the political
situation.”[11]
Why, then, did the authors of the Nationality Law ignore this painful experience
and confer political equality, hence citizenship, on Israel’s prolific
Arab inhabitants? No doubt they felt publicly committed to the equality provision
of the Proclamation of the State. But there is more.
Despite its indiscriminate egalitarianism, Israel’s Supreme Court has
admitted that the Proclamation (like America’s Declaration of Independence)
carries no constitutional authority and cannot served as a foundation for any
actual legal right.[12] The Proclamation itself calls for an “Elected
Constituent Assembly” which was to be convened not later than October
1, 1948 to adopt a Constitution. Such an assembly was indeed elected and it
subsequently appointed an eight-member Constitutional Committee consisting of
various party spokesmen, a majority of whom were left-wing secularists. A draft
constitution was submitted to the committee by Dr. Leo Kohn. The draft prescribed
equal political rights for Arabs, with the exception of one warmly debated provision
that the President of the Jewish State must be a Jew.[13]
Mapai (now Labor) spokesman Meir Grabowsky objected to this provision on the
ground that it would embarrass Jews in the Diaspora. The inclusion of an (allegedly)
“racist” idea in Israel’s Constitution would give other nations
an argument they might use in the event Israel should seek to uphold the rights
of Jews residing among them.
Zorah Wahrhaftig, representing Mizrachi and Ha-Poel Mizrachi, two religious
parties, dismissed Grabowsky’s fears as unjustified. He noted that the
proposed constitution would in other respects favor Jews, such as their unrestricted
right of immigration and almost instantaneous citizenship. Why then should a
Jewish State hesitate to make clear that its “first citizen” is
a Jew? Nevertheless, because he felt that further debate on this matter would
cause embarrassment, Wahrhaftig agreed that the provision in question should
be deleted.
Meir Loewenstein, representing Agudat Yisrael, another religious party, regarded
such an attitude as cowardice. He wanted a specific constitutional requirement
that the President be a Jew. He urged his colleagues not to worry about the
“racist” slur, saying: “Because of our race we were hounded
and because of our race we are alive.”
The provision was deleted, surely because of fear of anti-Semitism, as Loewenstein
indicated. This fear, I believe, very much explains why the authors of the Proclamation
of the State and of the Nationality Law granted equal political rights to Israel’s
Arab inhabitants. Underlying this fear, however, was the secular orientation
or diminished Jewish pride on the part of the founders of the State. The reversion
of Israel to Palestine must be understood in these terms.
National pride, rooted in a people’s sense of a venerable past, of shared
triumphs and transcended tragedies, of cherished beliefs and values, of timeless
and noble aspirations—this is the core of national consciousness and of
the dignity that should attach to citizenship. Israel’s Nationality Law
makes a mockery of nationality and citizenship, as well as of Islam and Judaism,
by endowing Arabs with equal political rights in a supposed-to-be Jewish State.
Israel’s reversion to Palestine is the price Jews are paying for this
lack of national pride and purpose, indeed, of practical wisdom and courage.
Contrast Jordan. Under the Jordanian Nationality law of February 4, 1954, a
person became a Jordanian national if, “not being Jewish, he possessed
Palestine nationality before May 14, 1948 and at the date of publication of
this law was ordinarily resident in the Hashemite Kingdom of Jordan.”[14]
This is less a manifestation of racism than of national pride and prudence.
Making Muslims citizens of a Jewish State is even more foolish than making Jews
citizens of any Muslim state, considering only the disparity in their respective
birthrates. Just as only Jews are qualified to make the laws of a Jewish State––think
of the knowledge and reverence required to preserve the Jewish tradition, its
religious precepts and practices, its methods of education, the memory of its
great teachers and leaders––so only Muslims are qualified to make
the laws of any Muslim state.
This does not preclude the granting of personal, economic, civil, and religious
rights to non-Jewish residents of Israel. To the contrary, the Torah requires
this of any Jewish government regarding foreign residents, provided the latter
duly accept the sovereignty of the Jewish State and abide by its general laws.
This is precisely what is implied, oddly enough, in Rabin’s statement:
“There is room for a non-Jewish minority on the condition that it accept
the destiny of the State vis-à-vis the Jewish people, culture, tradition,
and belief. The minority is entitled to equal rights as individuals with respect
to their distinct religion and culture, but not more than that.”
Since the State of Israel conferred citizenship and equal political rights on
its Arab inhabitants, the State can also revoke Arab citizenship along with
those rights should it be necessary to preserve “the State vis-à-vis
the Jewish people, culture, tradition, and belief.” The government of
Israel has not done this. Indeed, Arab citizens, 95% of whom voted for Peres
in the May 1996 elections, almost made him their prime minister. Hence the slogan
“Bibi or Tibi” was more than a slogan: it signified the paramount
issue of those elections. But, this means that Israel has become a bi-national
state with the demographic likelihood of eventually becoming an Arab-Islamic
state thanks to the Nationality Law and its reversion, in principle, to Palestine
citizenship.
III. What is to be Done?
Necessary, first, is a clear understanding of Judaism in relation to nationality,
citizenship, and statehood.
Because the Jews became a nation through and for the sake of the Torah, and
because Israel’s existence has no justification apart from the Torah,
a non-Jewish resident of Israel—a ger toshav in Jewish law—may not
be a citizen, vote, hold office, or shape the laws of a Jewish state.
It needs to be emphasized that for the observant Jew the Torah is the divine
source of truth and the paradigm of how man should live.[15] This is why a non-Jewish
resident of Israel may not participate in the government of the State. “A
hybrid community [such as the bi-national state of Israel] proclaims by its
very existence that it does not consider truth to be of supreme importance.”[16]
Granting Arabs citizenship in the State of Israel is a tacit denial of transcendent
truth!
Actually, the concept of citizenship is foreign to Torah Judaism, as is the
idea of the sovereign state. Since the state, in modern thought, is solely the
product of human will, so too are the laws of the state governing citizenship.
Besides, a defined area of land is essential to a state’s existence, hence
to its laws governing citizenship. As seen in the Torah, however, the people
of Israel existed before they possessed a land and a state. No one has expressed
this more clearly than Rabbi Samson Raphael Hirsch:
“The Jewish people and the Torah are different from any other people and
any other set of laws. They are the only people in history to have laws before
it had a land … Every other nation first became a people because it had
a land, and then fashioned laws in order to keep its land. But you became a
people by virtue of the Torah, and only when you received it were you given
land for its sake.”[17]
The Torah says nothing about “citizenship.” There is, however, the
concept of the “ger,” a proselyte or convert to Judaism. Because
Judaism is a unique philosophy and system of behavior, any person, regardless
of race or ethnicity, can become a Jew by learning the Torah and living according
to its precepts. (Some of Israel’s greatest sages were proselytes.) Proselytizing,
however, is forbidden by Jewish law, i.e. the Halacha. In fact, Jewish law requires
the government of Israel to treat non-Jewish residents who abide by the Seven
Noahide Laws of Universal Morality with the greatest courtesy and, if necessary,
to provide for their poor, their sick, and their elderly. Only by voluntary
halachic conversion can such residents be part of the Jewish people and participate
in the law-making functions of the State.
What also distinguishes Judaism is that any Jew who has converted to another
religion will remain with all the obligations of a Jew until the end of time.[18]
In contrast, citizenship is a right or privilege which can be renounced or revoked.
Also, in opposition to the idea of the sovereign state, Judaism posits the sovereignty
of the people, of course under God. This Jewish concept of sovereignty underlies
the American Declaration of Independence as well as the American Constitution
(notwithstanding the influence of such modern political philosophers as Locke
and Montesquieu). Ironically, modern Israel is based on the British and European
or non-Jewish conception of sovereignty, which fixes sovereignty in the State.
The State is an abstract and culturally neutral entity. Because it is based
on human will and not on truth, the sovereign state can confer citizenship on
diverse ethnic groups animated by the most antagonistic beliefs and values.
Hence it can transform a nation into a multicultural monstrosity. Here we touch
upon the difference between Contemporary (or random) Democracy and Classical
(or rational) Democracy.
Judging from the prevailing ideas and behavior of Western democratic societies,
Contemporary Democracy is little more than a random aggregation of individuals
and groups pursuing their own aims and interests. The result is ethnic pluralism
and moral relativism. Lacking in Contemporary Democracy are not only unifying
norms of human conduct, but any rational basis for national loyalty. Citizenship
in such democracies has no ethnic and no ethical significance. It does not issue
in national pride and civic virtue.
In contrast, Classical Democracy, exemplified in the founding of the American
Republic, is based on the Seven Noahide Laws of Universal Morality. The latter
is the source of the Higher Law doctrine of the American Declaration of Independence,
there termed the “Laws of Nature and of Nature’s God.” A democracy
so founded can inspire citizens of diverse ethnic origin with national pride,
provided that the laws and education of that democracy imbue citizens with a
vivid awareness that what they have in common is more important than their differences.
Even more germane to Israel and our inquiry is the historical fact that the
Athenian and therefore original understanding of “democracy” differs
radically from contemporary democratic thought. Democracy originally meant not
the rule of the “people” viewed as a random aggregation of individuals,
but the rule of an ethnically distinct people, a people united not only by language,
but by endagomous patterns of marriage and by shared beliefs and values rooted
in a common past. Therein is the most solid basis of national loyalty, of civic
virtue, hence of genuine citizenship. (This conception of a people is analogous
to the Torah’s distinction between an Am and a Goy.[19] The latter is
a corporate entity whose members are not united by a distinctive way of life.)
Jews and Arabs do not even share the same language, let alone the same ethnic
character. How infinitely trivial, by comparison, are the cultural differences
between French- and English-speaking Canadians. Yet the former fervently seek
to separate from the latter. Contrast, too, the 15-year civil war between Arab
Christians and Arab Muslims of Lebanon. Add the ethnic strife between the Kurds
and Arabs of Iraq, both of the Islamic faith, both citizens of that country.
Anyone with a stitch of intellectual integrity will see that Arab citizenship
in the supposed-to-be Jewish State of Israel is irrational as well as suicidal.[20]
It remains to address this issue.
Contrary to what was said above by Justice Landau, the 1950 Law of Return is
not simply an “immigration” law. In truth the Law of Return is Israel’s
only nationality law, and it is fundamentally opposed to the Nationality Law
of 1952! Let me explain.
In introducing the Law of Return in the Knesset in 1950, then Prime Minister
David Ben-Gurion declared:
“This Law does not provide for the State to bestow the right to settle
in Israel upon the Jew living abroad; it affirms that this right is inherent
in him from the very fact of his being a Jew; the State does not grant the right
of return to the Jews of the Diaspora. This right preceded the State; this right
built the State; its source is to be found in the historic and never-broken
connection between the Jewish people and their homeland.”[21]
Since only Jews have an inherent right to settle in Israel—a right that
transcends the State—the logic of this right prohibits the Knesset from
passing any law or acting on any principle (such as that of political equality)
that could demographically deprive Jews of that right. Yet this is exactly what
happened in 1952 when the Knesset passed the Nationality Law. While affirming
that only Jews have an inherent right to Israeli citizenship, the nationality
Law contradicts the logic of that right by making it possible for non-Jews to
obtain citizenship, hence to vote, hold office, and shape the laws of the supposed-to-be
Jewish State. Israel was thereby made a state for Jews and non-Jews alike—the
case of any Contemporary Democracy. The Nationality Law thus provides the ground
for denationalizing Judaism or for deJudaizing Israel.[22]
Here it should be noted that in American law (hence from a secular point of
view): “A man’s nationality is a continuing legal relationship between
the sovereign State on the one hand and the citizen on the other…. This
legal relationship involves rights and corresponding duties upon both—on
the part of the citizen no less than on the part of the State.”[23] Specifically,
and as Hans Kelsen writes in his Principles of International Law, “The
most prominent amongst those duties that can be imposed only upon citizens is
the duty to do military service.”[24] As Gouldman points out, however:
“In Israel, the duty of defense (both regular and reserve) is imposed
not only on nationals but also on any person whose ‘place of permanent
residence is within the territory to which the law of the State of Israel applies.’”[25]
Nevertheless, and as Gouldman and almost all other commentators fail to mention,
let alone criticize, is the policy of Israel’s government to exempt Arab
citizens from the duty of national service, be it military or civilian. Neither
Israel’s government nor these commentators want to address the reason
for this exemption and the appropriate consequences or policy that should follow
therefrom.
We have seen that Israeli Arabs are exempt from military service for security
reasons, which clearly indicates that they are not loyal citizens of Israel.
But given their disloyalty—which they do not conceal—reason and
justice call for the revocation of their citizenship. This brings us back to
Part II, section 11a3 of the Nationality Law which requires the revocation of
any Israel national who “has committed an act of disloyalty to the State.”
To remedy what American jurisprudence would term the “void for vagueness”
of this clause, it should be amended to read as follows:
“The citizenship of any Israel national shall be revoked if he or she
(1) engages in acts intended to impair Israel’s security or welfare, such
as serving in a terrorist organization whose aim is the destroy human life or
property in Israel; (2) aids or abets any terrorist who has committed, or plans
to commit, any act of violence against the State of Israel, its citizens or
residents; (3) advocates, or supports any individual, group, or nation that
advocates, violence against the State of Israel; (4) participates in acts intended
to impair Israel’s relations with other nations; (5) publishes or distributes
anti-Israel or anti-Jewish propaganda; (6) publicly espouses any political or
religious creed that incites violence against Jews; (7) publicly identifies
himself or herself as a ‘Palestinian’ as opposed to an ‘Israeli.’”
IV. Conclusion
To superimpose on Jews and Arabs the democratic principle of one adult/one vote
is irrational, unjust, and despotic, for this principle endows Arabs, who abhor
democracy as well as Jews, with the power to terminate—by legal and democratic
means—Israel’s existence as a supposedly Jewish and democratic State.
The indiscriminate application of this democratic principle is not only at war
with another democratic principle, namely freedom; it is also a betrayal of
Judaism and a formula for national suicide.
Although the proposed amendments to the Nationality Law will not of themselves
overcome the Arab demographic problem—for which purpose I have elsewhere
proposed, inter alia, a Jewish Constitution—discussion of such amendments,
however delicate, is necessary and urgent.[26] Nor should this subject be obscured
in Israel by preoccupation with the territorial-security issue. Indeed, the
latter is the direct consequence of ignoring the former.
That Israel’s present government may not have courage and wisdom enough
to address Rabin’s warning of May 6, 1976 should not preclude efforts
of Jews to place its implications on the public agenda. Short-sighted pragmatism
has been the bane of Israel and is largely responsible for Israel’s reversion
to Palestine. Needed is bold and long-range thinking consistent with Torah principles
and directed toward the only goal Jews can pursue with honor, the goal of a
truly Jewish State. It is to be hoped that Prime Minister Benjamin Netanyahu
will dedicate himself and his government to this noble goal.
* * * * * * *
1 Labor Party leaders, fearful of offending Arab voters on whom they so much
depend for their offices and perquisites, pander to the PLO whose influence
on these Arab voters is considerable. But the silence of the Likud and the religious
parties vis-à-vis Tibi’s obvious disloyalty is a reflection on
their character.
2 See M.D. Gouldman, Israel Nationality Law (Jerusalem: Alfa Press, 1970), p.
13 (italics added). Although this book was published in 1970, no subsequent
change in the laws of Israel affect the validity of my thesis regarding the
reversion of Israel to Palestine in terms of the crucial concept of citizenship.
It should also be noted the provision in question was violated by the British
White Paper of 1939 which terminated Jewish immigration to Palestine, rendering
it virtually impossible for Jews to escape the Nazi Holocaust.
3 Ibid.
4 Ibid.
5 Ibid., pp. 134-136.
6 Cited in ibid., p. 55.
7 Ibid., p. 15.
8 It should be noted that under Part II, section 10 of the Nationality Law,
a person can become stateless by renouncing his Israeli nationality. By so doing
he would still enjoy his personal, economic, social, and religious rights, but
not his political rights.
9 Ibid.
10 Ibid., p. 16 (italics added).
11 See Aaron Cohen, Israel and the Arab World (London: W.H. Allen, 1970), p.
229. And so it was after 1967 when Israel gained control of Judea, Samaria,
and Gaza. Thanks to Israel’s economic and technological assistance, not
only did Arab income in these areas multiply four-fold, but the government established
new hospitals, health centers, primary and secondary schools and universities.
Predictably (except to paraMarxists and naïve capitalists), these schools
and universities became hotbeds of insurrection. A word from Shimon Peres: “We
live in a world where markets are more important than countries [hence more
important than political and religious ideologies].” Pennsylvania Gazette,
November 1994, p. 17.
12 This was the stated position of the Court in the 1962 case of Peretz v. Kfar
Sharmyahu Local Council.
13 In the following three paragraphs, I am indebted to Emanuel Rackman, Israel’s
Emerging Constitution (New York: Columbia University Press, 1955), p. 71.
14 Gouldman, p. 69.
15 See Paul Eidelberg, Judaic Man: Toward a Reconstruction of Western Civilization
(Middletown, NJ: Caslon Co., 1996), ch. 10, summarizing the research of Dr.
Moshe Katz, CompuTorah: On Hidden Codes in the Torah (Jerusalem: privately published,
1996), and Doron Wtztum, The Additional Dimension (Jerusalem: privately published,
1989, in Hebrew).
16 See Eliyahu Meir Klugman, Rabbi Samson Raphael Hirsch (Brooklyn, NY: Mesorah
Publications, 1996), p. 137.
17 Samson Raphael Hirsch, Commentary on the Torah, Deut. 4:5.
18 Consider the famous “Brother Daniel” case. In 1942, during the
German occupation of Poland, Rufeisen, born to Jewish parents in that country,
converted to Christianity (probably to save his life). In 1945 he joined the
Carmelite Order of monks. In 1958 he came to Israel and applied for an immigrant’s
certificate under the Law of Return. The application was denied by the Minister
of Interior. The decision of the latter was upheld by Israel’s Supreme
Court, contrary to Jewish law, but conforming to the Court’s conception
of citizenship. See Gouldman’s discussion, pp. 23-26.
19 See Samson Raphael Hirsch, Commentary on the Torah, Exod. 5:7.
20 Yitzhak Rabin saw this in 1976, when Labor was in power, as it had been since
the founding of the State. In 1977, however, the Likud gained control of the
government, joined by the religious parties which abandoned their 29-year alignment
with Labor. Thereafter Labor would be increasingly dependent on the Arab vote,
hence on Arab citizenship. This dependency eventually produced a profound change
in the political tactics and even mentality of Rabin and his Labor colleagues
and goes a long way to explaining their appeasement of the PLO on the one hand,
and the surfacing of their scornful statements about Judaism and religious Jews
on the other.
21 Quoted in Gouldman, pp. 19-20 (italics added).
22 The Supreme Court’s liberal interpretation of the Nationality Law has
facilitated the process of deJudaizing Israel. See Gouldman, p. 72.
23 Cited in ibid., p. 9.
24 Cited in ibid., p. 117.
25 Ibid., pp. 117-118.
26 See Paul Eidelberg, “Toward a Jewish Constitutional Democracy in Israel,”
International Journal of Statesmanship (Beverly Hills, CA: Foundation for Constitutional
Democracy in the Middle East), Vol. I, Spring 1996.