Is Israel Sovereign? Part 2

In the first part of this series (Is Israel Sovereign?) I analyzed the facts that brought into existence the State of Israel. The inevitable conclusion was that the State of Israel is not sovereign because it lacks a social contract with its citizens. The last were never asked to agree, there was never neither a referendum nor a popular vote on the issue. David Ben Gurion didn’t have popular mandate to declare Israel’s independence on May 14, 1948.

Void of Legal Value

Israel’s Independence Declaration was printed in a very elegant fashion; but it has no legal value. Even its declarative value is questionable: it expresses only the opinion of those who signed it. They didn’t have the people’s mandate to do that and completely ignored the human rights issue, mainly because of Ben Gurion’s assessment that they needed the Orthodox Jews support for making a stable coalition government. However, the main reason it is void of value, is that the state itself denies it.

In the eyes of the State of Israel authorities, one of the problems of the declaration is that it promises: “freedom, justice and peace,” and “complete social and national equal rights to all its citizens without difference of religion, race or gender,” “securing freedom of religion, conscience, language, education and culture, will keep the Holy Places of all religions and will be faithful to the United Nations...” These are very uncomfortable promises. Until now, all the Israeli governments were based upon coalitions that included political parties that couldn’t agree to some of these promises. The main problems were imposed always by the Ultra Orthodox Jewish parties like Agudat Israel and Shas.

Avoiding the problem, the Knesset – the Israeli Parliament – claims the declaration is neither a law nor an ordinary legal document. The Israeli Supreme Court ruled that the declaration contained just guiding principles, that it is not a constitutional law. Nowadays, Knesset laws are enforced even if they are inconsistent with the principles in the Declaration of Independence.

Placed in an uncomfortable position on the international arena, the Knesset legislated two basic laws – defined as base for a future constitution – namely the Human Dignity and Liberty and Freedom of Occupation ones – stating that "fundamental human rights in Israel will be honored.” However, these laws fail to give an exact definition.

Israel Broke the United Nations Conditions

Another landmine – in the eyes of the Israeli authorities – in the independence declaration is the claim that Israel will be faithful to the UN principles; this is another reason for the formal institutions of the State of Israel to declare it void of legal value. On 29 November 1947, the United Nations General Assembly adopted Resolution 181 on the partition of Palestine into a Palestinian State, a Jewish one and special areas – like Jerusalem – under the direct administration of the UN.

An overlooked part of that decision was a formal minority rights protection system. The protection was to be enforced by the UN and the International Court of Justice. Thus twice in the declaration, Israel promises to be nice to the minorities; once explicitly by promising equality and second implicitly by promising to be faithful to the UN, which promised protection to those minorities.

Subsequently, Israel claimed these minority rights were constitutionally embodied as the fundamental law of the state of Israel through the Declaration of the Establishment of the State of Israel, and various letters addressed to the Secretary General. These assurances were the base for the General Assembly Resolution 273 (III) Admission of Israel to membership in the United Nations, from May 11, 1949.

Reality was very different. One irregularity – the lack of formal constitution, or any other type of social contract – gave birth to another.

Law of Return

The Law of Return gives automatic and immediate citizenship to every Jew arriving at Israel. A Jew is defined in that law as a person born Jew (with a Jewish mother or maternal grandmother), with a Jewish ancestry (with a Jewish father or grandfather) or a convert to Orthodox Judaism (Reform and Conservative converts are recognized only if performed outside the State of Israel, Messianic Jews are rejected). The base for this racist law is what is known as “jus sanguinis” in Latin, namely the “Blood Law” which was used in ancient times to attribute citizenship on the base of family relations. However, the Law of Return denies citizenship to Jews that have converted out of their free will. Did their blood change during the conversion process?

Later, the law was amended to include non-Jews relatives of Jews, but it never recognized the Right of Return of other ancestral denizens of the land that were expelled during the wars: the Palestinians. For them, “jus sanguinis” does not exist. Again, that is despite the earlier promises of equality. In a related type of discrimination, the Arab citizens of the State of Israel were under military government until 1966, while the Jewish were not.

An important point to keep in mind is that the Israeli citizens – regardless their ethnic background and religion – were never allowed to say their word. This discriminating principle was never put to democratic test. Due to its importance to the nature of the Israeli society, it should have been.

Who is a Jew?

The Law of Return gives citizenship to Jews arriving at Israel. However, an intrinsic flaw accompanies it: “Who is a Jew.” “If your mother was, or...” are the arguments presented by that law to answer the question. But they have created only a recursive trap; the same question would apply to the testifier of one’s “Jewishness,” ad infinitum. Who would testify for King David’s mother?

The Chief Rabbinate of Israel, which is part of the Israeli Ministry of Religious Affairs and is controlled by the Ultra Orthodox Jewish parties, has been the authority deciding on “Who is a Jew” until now due to coalitional considerations, but this is a questionable practice. Non-Orthodox religious Jews do not accept it, because the ultra-Orthodox refuse to recognize their conversions. The Israeli Supreme Court ruled in 2005 that conversions performed by the last outside Israel must be recognized, but those inside Israel not.

What?

What? Is one’s religion dependant on geographical issues? Absurd as it seems, eleven of the most respected judges in Israel claimed that one’s conscience on the issue is irrelevant; your religion may be defined by your trajectory upon earth. They claimed that and are still considered wise; moreover, a whole country abides by this rule.

Citizenship and Entry into Israel Law

The Citizenship and Entry into Israel Law from 2003 places age restrictions for the automatic granting of Israeli citizenship and residency permits to spouses of Israeli citizens, such that spouses who are inhabitants of the West Bank and Gaza Strip are ineligible. The United Nations Committee on the Elimination of Racial Discrimination unanimously approved a resolution stating that this law violated an international human rights treaty against racism on the grounds that the law is discriminatory because it disproportionately affects Israeli Arabs since Israeli Arabs are far more likely to have spouses from the West Bank and Gaza Strip than other Israeli citizens.

Yet, Israel continues to claim it is a democratic country securing the rights of minorities...

Again, Israel just ignores its own commitments towards its citizens and the international community.

Palestinian Right of Return

If speaking about the Law of Return, then the parallel Palestinians right must be assessed. This Right of Return was defined by the UN General Assembly Resolution 194. Article 11 of that resolution states:

“Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.”

Judging by the results, it seems that Israel’s Independence Declaration promise to be faithful to the UN does not include this type of resolutions.

This right has been since then ratified several times. The United Nations General Assembly Resolution 3236, from 1974 recognizes the Palestinian people's right to self determination, makes the contacts between the United Nations and the Palestine Liberation Organization official and added the "Question of Palestine" to the UN Agenda. It states that it: “Reaffirms also the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return;”

Again, Israel just ignores its own commitments towards its citizens and the international community.

If that was not enough, the Universal Declaration of Human Rights claims that: “Everyone has the right to leave any country, including his own, and to return to his country.”

Again, Israel just ignores it.

“No one shall be arbitrarily deprived of the right to enter his own country,” says the International Covenant on Civil and Political Rights.

Again, Israel just ignores it. Simply, the Palestinians are not Jews and thus are not recognized by the Law of Return. In my article "Is Quoting the Talmud Anti-Semitic?" I commented on the Orthodox Jews claim that non-Jews have no property rights:

The Talmud teaches in Baba Bathra, Folio 54b, that non-Jews have no property rights. Their possessions are "like unclaimed land in the desert." The passage appears on page 222 of the Soncino edition: "Rab Judah said in the name of Samuel: The property of a heathen is on the same footing as desert land; whoever first occupies it acquires ownership."

Doesn’t the occupation of Palestine appear now in a new light?

On Christian Russians, Palestinians and Settlers

On the other hand, Israel accepted massive numbers of non-Jews during various Aliyah waves. The most remarkable one was during the 1990’s when over a million people entered from the former USSR to Israel under the protection of the Law of Return. Orthodox sources claimed that well over a hundred thousand of them were Christians seeking to leave their former Communist. I have enjoyed underground Christmas meals with some of them; underground because openly celebrating the Prince of Peace is forbidden in Israel.

In another impossible angle of the Israeli reality, settlers in the West Bank live next to Palestinians. I have visited both. The Palestinians are void of citizenship, cannot move freely and cannot even marry their beloved ones if these are Israeli citizens (one case reached in 2006 the Supreme Court and the sublime and wise judges rejected the marriage). The settlers are outside the territory of the State of Israel, yet they enjoy all the regular rights of an Israeli citizen. In my exile location, I cannot vote for the Israeli Parliament because it is not within Israel; yet, the settlers can vote and marry whatever they want.

Discrimination and racism hiding under claims of democracy and equality.

Double Game

Israel plays a double game. Towards its citizens it claims the Declaration of Independence is not a binding document, but to the UN it states otherwise. The State of Israel is faithful neither to the UN nor to its citizens. The promise in the Declaration to create a Constitution for the new state is ignored.

In addition to the arguments presented in the article “Is Israel Sovereign?” claiming that Israel failed to fulfill the basic requirements for achieving sovereignty, we see here how it purposely failed the external requirements towards the UN – the provider of external recognition – and failed even its proposed social contract towards its citizens; “proposed” because it was never properly ratified and because Israel does not have a constitution even now. If these irregularities were all the existing problems, many would be tempted to say: “let it be, there are more serious things in life than an illegally founded country.”

However, as it has been shown, the list of violations goes on and on.

Israel openly breaks the condition upon which it was recognized as sovereign by the UN, and has not been awarded sovereignty by its own citizens, through a social contract.

Hence, Israel cannot be considered a sovereign entity. Such a situation opens the possibility for an international force to enforce human rights in the area. Technically, the State of Israel cannot object to that because it does not exist as a legal sovereign entity.

The international community and the UN should also adopt a clear policy for such rogue states; until now we see enforcement on some cases (Iraq) or apathy on others (Pol Pot’s Cambodia). Decency calls for letting people free to choose their own future. I call the UN to enforce democracy on the territories under the control of the State of Israel.

We deserve a better future.