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Israel’s Anti-Liberal Legislative Trends: A Guide for the Perplexed

Israeli legislation has over the last decade been increasingly geared to entrench the ethnic-religious and nationalist ideology of Binyamin Netanyahu and his coalition government. This legislative trend is evident in some laws which have already been passed by a majority in the Knesset and is accentuated in the numerous legislative initiatives proposed by members of the Knesset belonging to parties in the governing coalition. The government’s drafting of its legislative initiatives has frequently exhibited the trademarks of an authoritarian hegemony with disregard for human rights implications. The persistent vigilance and activism of Israeli civil society, however, along with interventions of the Supreme Court and the media, both local and international, have frequently succeeded in nixing or toning down the early legislative drafts.

Nevertheless, the final versions of these laws that do pass are blatantly anti-liberal, undermine democracy and, in some cases, constitute violations of international humanitarian or human rights law. The trend has four interconnected facets: validation of illegal settler colonization of the West Bank; deference to Jewish religion or ethnicity at the cost of unequal treatment of national minorities and of women; limiting freedom of expression through measures restricting NGOs; and restrictions on expression of ethical pluralism in education and the arts. This anti-liberal legislative trend has been shored up by a barrage of government rhetoric, hostile legislative proposals, and administrative action which threaten to restrict the power of the gatekeepers in the law enforcement system and the media.

Validation of Illegal Settler Colonization of the West Bank

The Law for the Regulation of Settlement in Judea and Samaria of 2017 allows the expropriation of the rights of use and possession of privately owned land in the West Bank, with compensation to the landowners. This law disregards human rights on two levels. On one level, it subverts Israel’s own prior legal distinction prohibiting the use by Israeli settlers of land in the West Bank if it was privately owned, which had avoided violations of private property rights while serving as a spurious mask of legality for holding the territories under military rule.

On the second level, it continues Israel’s flagrant violation of international humanitarian law, which absolutely prohibits transfer of the civilian population of an occupying power to the occupied territory. The Israeli claim prior to the 2017 law had been that Israel was not in violation of this prohibition on settlement, as it was not directly regulating private property in the West Bank. Even before passage of the 2017 Law, however, this claim was spurious in the face of the government’s facilitation of the settlement project through budgetary measures and infrastructural support. Israel further claims that the West Bank is not occupied territory as it had not been under the sovereignty of a foreign state at the time of its belligerent occupation by Israel. Contrary to Israel’s claims, the West Bank is considered by the international community to be occupied territory under the combined provisions of the Hague Convention and the Fourth Geneva Convention, because even if it was not under the sovereignty of a foreign state in 1967, it was also not under Israeli sovereignty. In this situation, the regulation and validation of the settler project by the Knesset puts the seal on Israel’s violation of international humanitarian law.

Deference to Jewish Religion or Ethnicity at the Cost of Unequal Treatment of National Minorities

The Basic Law – The Nation-State of the Jewish Nation of 2018 defers to Jewish culture, religion and history as constituting a unique right to national self-determination in Israel of the Jewish nation. While the right of the Jewish people to self-determination in Israel has been recognized by the United Nations since 1948, this right does not exempt the state of Israel from the obligation to ensure the rights of its minorities, including all non-Jewish citizens, to full and equal citizenship.

The law indicates a failure to guarantee the equal citizenship of the Arab minority by omitting the designation of Israel as a democratic state, thus diminishing the requirement of democratic foundations in the earlier Basic Law: Human Dignity and Liberty. Both these Basic Laws are crucially lacking in their failure to include the right to equality, which is a key right of the international human rights regime, entrenched through the non-distinction principle which prohibits discrimination on the basis of group characteristics, including — crucially in this context — race or national origin.

Beyond the pre-existing failure to expressly guarantee the right to equality in Israel’s basic laws, there are some specific provisions which might entrench measures of inequality. Much attention has been paid to the demotion of the Arabic language from an official language to a language with a special status, although this appears to be a rhetorical rather than legal measure, as the law also expressly preserves the status of the Arabic language as it was prior to its passage. Furthermore, the law expressly accords preference to Jewish settlement, regarding it as “a national value” and thus paving the way for the possible weakening of decisions by the High Court of Justice prohibiting the exclusion of Arab purchasers by reception committees in Jewish settlements that were established with public funding.

The law entrenches deference to the Jewish religion. The law expressly provides that the state of Israel is the nation state of the Jewish nation in which it realizes its natural, cultural, religious, and historic right to self-determination. This departs from the formula in the Declaration of Independence, which cites only the natural and historic right of the Jewish people and guarantees complete equality of social and political rights to all inhabitants irrespective of religion. This shift to a Jewish religious basis for nationhood has dire human rights implications for the right to equality, which has been omitted from all basic laws as a result of the lobby power of Orthodox Jewish political parties, supported by the indifference and concessions of the so-called secular parties, some civil society organizations and academics. The deference to religion over the right to equality has dire implications for women, non-Jews and the LGTBI community and violates international human rights law. The position taken by independent experts of the UN human rights mechanisms has consistently been that freedom of religion must not be used as a justification for discrimination.

Limiting Freedom of Expression Through Measures Restricting NGOs

The Transparency Requirements for Parties Supported by Foreign State Entities Law of 2016 requires NGOs to report foreign funding provided by foreign state entities. The NGOs are listed by the Ministry of Justice, and their source of funding must appear on their websites and be revealed in appearances before public committees. This requirement of transparency is unobjectionable, but the problem is in the asymmetric branding of NGOs that receive state funding, thereby targeting, labeling, and delegitimizing NGOs that deal with human rights in Israel and in the OPT, while leaving foreign private individual or corporate funding of right-wing organizations non-transparent.

This law restricts the rights to freedom of thought and expression and the freedom of organization of Human Rights Defenders (HRDs), contrary to the United Nations Declaration on HRDs, which clearly states that access to resources is a self-standing right, based on freedom of association and freedom of expression. The High Commissioner on Human Rights has clarified that this right encompasses the receipt of funds from abroad and that states must ensure that they do not discriminatorily impose restrictions on potential sources of funding. The Israeli legislation is not, as was claimed by Justice Minister Ayelet Shaked, similar to the U.S. Foreign Agents Registration Act (FARA), which is not triggered by mere receipt of foreign funds but only by an organization being controlled and directed by a foreign entity and hence has not in practice impacted NGOs at all.

Further legislative restrictions on the funding of NGO activities in Israel include the “Political Parties Funding” bill, (aka the “V15 Law”), which caps donations to NGOs advancing political initiatives during elections, and the Civil Service Law, which eliminates the right of organizations that receive foreign government funding to have funding for National Service volunteers. There are additional parliamentary attempts to prevent criticism of the government by human rights organizations, such as the proposal of the coalition parties to establish a parliamentary committee of inquiry into the funding by foreign countries of Israeli organizations whose work is seen as harmful to IDF soldiers, which was declared by the Knesset’s legal advisor to be invalid.

A n o t h e r l a w w h i c h limits freedom of expression is the Law for Prevention of Damage to State of Israel through Boycott passed in 2011. This law aims to deter persons from publishing calls for an economic, cultural, or academic boycott of individuals or institutions based on their affiliation to the state of Israel and/or to a specific region under Israeli control — a reference to the Israeli settlements — allowing Israeli authorities to deny them benefits such as tax exemptions or participation in government contracts. It allows actions for compensation by private parties, who must, as a result of a 2015 decision by the Supreme Court striking down one of the law’s original sections, bring proof of actual damage. The prohibition of boycott as such is not necessarily a violation of human rights, and the European Court of Human Rights held in 2009 that a criminal conviction in France against the mayor of Seclin for calling for a boycott of Israeli products had not violated his freedom of expression, because he “had not been convicted for his political opinions but for inciting the commission of a discriminatory and therefore punishable act.”

Nevertheless, Israel’s Boycott Law does restrict freedom of expression on an issue which is in the realm of political expression because it not only restrains action against Israel as such but also limits freedom of expression to resist the settlement policy in the OPT, which is most definitely at the heart of political controversy in Israel. The restrictive impact of this law was aggravated by 2017 Amendment No. 27 to the Entry Into Israel Law, which prohibits the entry into Israel of any foreigner who makes a “public call for boycotting Israel” or “any area under its control” with a “reasonable possibility” of succeeding. It is on this basis that numbers of highly prominent academics and human rights activists from abroad have been denied entry to Israel. Furthermore, current legislative attempts include reenactment of the provision of the Boycott Law to allow private individuals to sue for compensation without proof of damage, which had been struck down by the Supreme Court.

While the Boycott Law was aimed at freedom of expression regarding the Occupied Palestinian Territories (OPT), the 2011 Amendment No. 40 to the Budgets Foundations Law, the Nakba Law, aimed to silence any expression of an Arab minority narrative regarding Israel itself. The law authorized the finance minister to reduce state funding or support to an institution if it holds an activity that rejects the existence of Israel as a “Jewish and democratic state” or commemorates “Israel’s Independence Day or the day on which the state was established as a day of mourning.” To date, there have been 98 appeals to enforce the Nakba Law, but the Finance Ministry has not applied the law on any occasion.

Restrictions on Expressions of Ethical Pluralism in Education and the Arts

The restrictions on expressions of ethical pluralism apparent in the NGO, boycott and Nakba legislation have been extended to the fields of education and the arts. In 2018, the State Education Law (Prevention of Activity in an Educational Institution of External Bodies Acting Against the IDF or the Goals of Education) empowered the education minister to prevent the entry of an external body or lecturer whose activity contradicts in a severe and significant manner the goals of education. The law was enacted and has been applied in order to prevent the entry of the NGO Breaking the Silence into schools.

The problem here, too, is asymmetry, as there is no ban on civil society organizations as such, and numerous organizations enter schools and teach social, military or religious worldviews. It all depends on what is approved by the education minister, and Naftali Bennett, the current minister, has shown ethnic, religious and nationalist biases. He has removed the school curriculum literary works that bring a liberal message, such as Dorit Rabinyan's novel Borderlife and Yehuda Atlas’s Israeli classic The Girl I Love. He has introduced a new civics textbook whose biased editing provoked extensive public criticism, and has introduced a religious agenda into the state secular schools which is the object of a petition by parents to the Supreme Court.

In higher education, Bennett has intervened to limit academic freedom, commissioning a code of ethics which was formulated by Professor Asa Kasher and recommended that a unit should be established to supervise political activity in academic institutions and prohibit lecturers from expressing political opinions. Under his ministry, the Council for Higher Education has supported and financed the establishment of Jewish ultra- Orthodox programs in the universities and higher education colleges which exclude students who are not Jewish and ultra-Orthodox and blatantly discriminate against female lecturers. These programs are the subject of current petitions to the Supreme Court.

The minister of culture and sport, Miri Regev, extended the war on alternative views to artistic expression. According to the pre-existing law, it was clear that the state should not fund a cultural event that constitutes a legal offense or includes clear incitement to racism or violence. Regev’s initiatives, however, go much further and aim to prevent the portrayal of worldviews that are different from those held by the political, religious or military establishments in Israel, thus restricting the freedom of expression. She has frequently (unsuccessfully) appealed to the finance minister to refuse funding for cultural activities such as the Haifa Film Festival, on the grounds that they undermine “our values and our symbols.”

In response to Regev’s call in June 2018 to withdraw funding from theaters and art galleries that have plays and installations that “delegitimize” Israel, Attorney General Yehuda Weinstein gave his opinion that defunding “unpatriotic” culture would have a chilling effect on artistic expression for some institutions, “out of the fear that it would endanger their government funding.” Nevertheless, the Cultural Loyalty Bill, which would allow the culture minister to withhold public funding for cultural organizations, passed its first reading on November 5. In the course of the debate, Regev gave the Jaffa Soraya Theatre (a joint Arabic-Hebrew venture) as an example because it screened Naila and the Uprising: Women of the First Intifada, a documentary which depicts a Palestinian woman from Gaza who struggled for nonviolent resistance during the first intifada and describes her personal life and clashes with the Israeli authorities.

Conclusion

The coalition government and the Knesset majority have authored a series of laws which variously undermine equality, freedom of expression and pluralism in Israeli society and, in some cases, disregard international human rights law. The fact that these laws have been passed by a majority vote does not render them immune from international humanitarian or human rights law review. On the contrary, the international human rights regime was established as a limitation on the power of the majority to violate the human rights of individuals and minorities. The government, however, is attempting to shield itself from proper review by delegitimizing the gatekeepers in the law enforcement system. There is an ongoing repetitive legislative campaign to weaken the review function of the Supreme Court by changing the procedures for the appointment of justices and the rule of seniority for the appointment of the President of the Supreme Court or the Court’s powers of judicial review by introducing an override clause that would allow the Knesset to override the court’s decisions, increasing the power that already resides in the Knesset, and by constantly attacking the court and its justices from the Knesset podium. The media are under onslaught through the budgeting mechanisms for the TV channels; through the free distribution of the Israel Today daily without a published caveat that the newspaper is financed by Sheldon Adelson, a foreign right-wing U.S. Republican billionaire who made his fortune in the gambling industry and has a clear pro-Likud and pro-settlement agenda in Israel; and through attacks by the prime minister on the press and on investigative journalists.

These proposals and administrative measures are an attack that is being fiercely resisted by human rights defenders, journalists, and NGOs from all sectors, and the protection of their freedom of expression and organization is key to the preservation of Israeli democracy.


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