1948 Palestinians: Discrimination in Israeli Law
Despite Israel's ratification of the International Covenant on Civil and Political Rights (ICCPR) and its guarantee to protect all its citizens against discrimination, Palestinian citizens in Israel are discriminated against in a variety of forms and denied equal individual rights because of their national belonging. Though this discrimination is politically motivated, the Israeli legal system is part of this political context. As well as offering limited provisions for equality or political participation to members of the Palestinian minority, the law in Israel subjects them to three types of discrimination: direct discrimination against non-Jews within the law itself, indirect discrimination against non-Jews within the law itself, indirect discrimination through ''neutral" laws and criteria which apply principally to Palestinians, and institutional discrimination through a legal framework that facilitates a systematic pattern of privileges.
THE "JEWISH AND DEMOCRATIC STATE"
The Declaration of Independence in 1948 defined Israel as both a Jewish and democratic state, committed both to the "ingathering of the exiles", and to guaranteeing equality to all its citizens. Yet insofar as Israel defines itself as Jewish, it overrides and compromises the extent to which it can be democratic.
Israel as a Jewish state has been legally defined as resting on three minimum conditions: where Jews form the majority, where Jews are entitled to special treatment and preferential laws, and where a reciprocal relationship exists between Israel and the Jewish people in the diaspora. Yet in all these conditions, the Palestinian minority is both excluded and hence discriminated against: by privileging Jews, the state treats others as second-class citizens.
CONSTITUTIONAL EQUALITY
Israel does not have a formal constitution, but has drawn up a series of Basic Laws that form a constitution in evolution. Prior to 1992, none of these Basic Laws guaranteed any basic rights. However, in 1992 the Basic Law: Human Dignity and Freedom was passed which subsequently authorised courts to overturn Knesset laws that were contrary to the right to dignity, life, freedom, privacy, property and the right to leave and enter the country. Specifically, however, it did not include the right to equality.
Further, section 1A of the law states that it aims to anchor "the values of the State of Israel as a Jewish and democratic state". Given the lack of an explicit law that constitutionally protects equality for all citizens, this emphasis on the Jewishness of the State again compromised the equal rights protection for the Palestinian minority.
"The Zionist dream is to construct a state which is as Jewish as England is English and France is French. At the same time, this state is to be a democracy on the Western model. Evidently, these goals are incompatible. Citizens of France are French, but citizens of the Jewish sstate may be non-Jews, either by ethnic or religious origin or simply by choice [...] To the extent that Israel is a Jewish State it cannot be a democratic state"
(Noam Chomsky, Forward to The Arabs in Israel (Adalah, Legal Violations of Arab Minority Rights in Israel, 1998, p. 9)POLITICAL PARTICIPATION
Palestinian rightsto run for elections to the Israeli parliament, the Knesset, are also limited by their acceptance of the notion of the Jewish state. These limits are expressed in the Law of Political Parties (1992) and, in particular, the amendment of section 7A(1) of the Basic Law: The Knesset which prevents candidates from participating in the elections if their platform suggests the "denial of the existence of the State of Israel as the state of the Jewish people". Under this section a party platform that challenges the Jewish character of the state, that for example calls for full and complete equality between Jews and Arabs in a state for all its citizens, can be disqualified, as lists have been in the past. The law demands that Palestinian citizens may not challenge the state's Zionist identity.
"It implies that on a decidedly fundamental level there is no real equality between Arab and Jew in Israel. The state is the state of the Jews, both those presently resident on the country as well as those residential abroad. Even if the Arabs have equal rights on all other levels the signal is there: Israel is not their state." (David Kretzmer, The Legal Status of the Arabs in Israel, Westview Press, 1990, p. 42-43)
DIRECT DISCRIMINATION
There are two main examples of laws that discriminate against Palestinians by directly distinguishing between Jews and non-Jews:
Citizenship Rights and The Law of Return
National identity is the main factor in deciding the acquisition of citizenship in Israel. The Law of Return grants every Jew the right to immigrate to Israel. The Nationality Law automatically grants citizenship to all Jews who have done so, and also to their spouses, children, grandchildren, and all their spouses. This privilege is for Jews only. Palestinians can only get citizenship by birth, residence (after meeting a cumulative list of conditions) or naturalisation (exceptionally rare).
Special Status of Jewish Organisations
As a result of the World Zionist Organisation-Jewish Agency Law, the Jewish National Fund, Jewish Agency, and World Zionist Organisation hae special constitutional status in Israel and are known as quasi-governmental bodies. They are Jewish organisations which explicitly aim to benefit Jews only, but have authority for certain governmental functions, including developing the land and housing projects and settlements. Their activities are co-ordinated with the government and are given tax benefits, and they have a lot of influence on decisionmaking boards (particularly in agriculture and land use).
The Palestinian minority is excluded entirely from these functions as either beneficiaries or participants. Further no government organisations perform the same functions for non-Jews. Consequently, Palestinian needs are systematically disregarded.
Indirect Discrimination
More widespread is the use of "non-discriminatory" criteria in statutes that lead to differences in the treatment of Jews and the Palestinian minority:
Military Service
Many government preferences and benefits in Israel are conditioned on performing military service. Whilst military service is technically compulsory for all citizens, by discretion the vast majority (90%) of Palestinians are not required to serve; whereas the majority of Jews do. As a consequence, they do not receive the wide range of benefits, including larger mortgages, partial excemptions from course fees, and preferences for public employment and housing. The discriminatory factor is that in many cases the link between the benefit offered and the requirement for military service is tenuous, often as in employment opportunities, and that government offices provide benefits beyond what is legislated. The most celebrated example of this was the level of state child benefits, wich until 1997 were conditioned on military service, rather than more obvious socio-economic factors.
The impression that this is a mechanism for privileging Jews is borne out by the fact that Jewish Yeshiva students, who like Palestinian citizens do not serve, are granted the benefits anyway, a policy which has been upheld by the Israeli courts.
Place of Living
The government categorises the country into different zones and awards different statuses and benefits to different towns. For instance, it denotes certain areas national development areas, which then akes them eligible to receive benefits including special tax incentives for industry, educational programmes, and housing incentives. These areas are supposed to be determined according to socio-economic criteria. Yet the zones are drawn to include a disproportionate number of Jewish localities rather than Palestinian ones.
For example, in the 1998 classification, out of the 429 localities accorded Development Area A status, only 4 were Palestinian, despite the fact that Palestinian towns and villages are consistently at the bottom of the socio-economic scale. The zoning was used to exclude the vast majority of the Palestinian minority from these benefits.
Institutional Discrimination
The Palestinian minority in Israel is discriminated against by the aspects of the legal system which allow the government to adopt discriminatory policies, or the discretionary power that can be used by Israeli officials to maintain a systematic pattern of preferences.
Budgets and Resource Allocation
The Budget Law, which governs Israeli state funds, does not specify what proportion should be earmarked for minorities; the decision lies with officials' discretion. Due to their lack of representation in government offices, Palestinians receive substantially less funding for e.g. local government budgets (usually 50 percent less), and have less resources allocated for welfare budgets, school facilities or other education programmes. Often this discrepancy is justified by the government running projects in cooperation with the Jewish Agency, thus necessitating only Jewish beneficiaries.
UNEVEN IMPLEMENTATION OF THE LAW
There are three ways in which the implementation of the law adversely affects the Palestinian minority in Israel:
(I) Positive statutes that the State is expected to enforce or services that the State is required to provide can simply not be implemented in Palestinian communities, such as the Compulsory Education Law, and the provision of truant officers or counsellors, despite the fact that Palestinian students form 75 percent of those who drop out of school throughout the whole country.
(II) Laws that apply to both Jews and Palestinians can be selectively or predominantly implemented on Palestinians, such as land confiscation laws or house demolitions.
(III) Laws can be implemented with different criteria for Jews and Palestinians, such as criteria for family assistance in education programmes or production quotas for agricultural production. Often differences in quotas are maintained due to a lack of Palestinian representation n decisionmaking authorities.
The judicial review of this institutional discrimination is limited. To date, there is not one court where the Supreme Court has accepted a case of discrimination against the Palestinian minority and ruled to protect its rights. It usually accepts the claim of the Israeli State that its policies serve national priorities and thus are not discriminatory, or that different treatment between Jews and Palestinians is legitimate, as they are different groups. Even when historical discrimination is admitted, the court will not rule to close the gaps, arguing that responsibility lies with the decisionmaking of the executive.