Under Guise of War

Since October 7, 2023 and amidst the bloody Iron Swords war, the Israeli Parliament (hereinafter: the Knesset) has continued to fulfill its role as legislator, submitting and enacting new legislative initiatives on a myriad of issues. While many of these focus on the ramifications of the war, other initiatives may be seen as promoting a steady change to the social fabric within Israel, by creating a framework for discrimination against Arab Israelis at a wider capacity than before.

This article seeks to analyze the current legislative trends and suggests that the rhetoric acceptable in times of war has opened the door to systemic discrimination. Several of these new laws could pose a dangerous new precedent in Israel, stripping the right to equality and human dignity of their meaning and threatening the already fragile state of democracy as we know it.

Equality & Discrimination in Israel

The State of Israel’s Declaration of Independence, 1948 anchors basic values and rights inherent to Israel’s identity as both a Jewish and democratic state. Among them are liberty, justice, equality from discrimination, freedom of religion and more. In the 1990s, Israel underwent a “human rights revolution”, ratifying several international human rights conventions and enacting two Basic Laws (laws of a constitutional level): Freedom of Occupation, and Human Dignity and Liberty. While the latter does not explicitly include the right to equality from discrimination, Israel’s Supreme Court has read this value into the law as an inherent part of any person’s right to dignity.

Moreover, Israeli legislature includes multiple laws which specifically anchor the right to equality in different contexts: Women’s Equal Rights Law, 1951; Equal Rights of Persons with Disabilities Law, 1988; Equal Opportunities in Work Law, 1988; Law Against Discrimination in Services or Entry to Public Places, 2000; and more. The Law against Discrimination in Services or Entry to Public Places explicitly prohibits discrimination on the basis of race, nationality, religion, ethnicity and more. This law has protected Arab-Israelis in numerous court cases, including a 2023 case in which the claimants were awarded 71,000 NIS as remedy for not being given entry to a dance club in Northern Israel. Additionally, incitement to racism is a crime in Israel’s Penal Law.

That being said, there is no doubt that elements of racial discrimination have made their way into facets of the Israeli legal system. Most notably, Israel’s 2018 Basic Law: Israel – Nation State of the Jewish People, while not unprecedented in its delineation of a nation state (France, for example), problematically marks Arabic as a language with a “special status,” as opposed to an official one, whilst referring neither to equality nor parallel rights of non-Jewish citizens of the State. While acknowledging these concerns, in 2021 the Supreme Court ultimately ruled that the Law could be interpreted as not discriminating against non-Jewish citizens, and merely declaring Jewish citizens’ rights, and therefore as constitutional. Nonetheless, different factions of non-Jewish Israelis, specifically Druze who serve in the IDF, argue that the Nation State Law severely impairs their sense of belonging and equality.

Although the Nation State Law made the most waves, it is worthwhile to examine other instances which raise questions to the status of racial equality in Israel. For example, while freedom of expression is protected and valued, one of the strongest limitations is the prohibition to incite terror, which includes expressions of support, admiration and sympathy, and historically has included indictments of expressions of alignment with the Palestinian cause for self-determination that do not include violence or terror (see Mimran & Farber [Hebrew]). Essentially, the use of this prohibition has a racial leaning, and therefore, although subtle, wider ramifications on the status of discrimination.

Wartime Legislation Beyond the Scope of War

While human rights law allows for derogation in times of emergency, taking advantage of the understandable tension that derives from war, Israeli lawmakers are currently promoting a series of far-reaching laws whose consequences could erode the state of equality long after the war-time context fades.

On November 7, 2024, the Law Prohibiting Employing Teachers and Removing Subsidizing from Educational Institutes for Identifying with an Act of Terror or Terrorist Organization (Legislative Amendment), 2024 [Hebrew] was enacted. This law prohibits local municipal educational funds from subsidizing any educational institute which has expressed support for an act of terror or identified itself with a terrorist organization and allows for the dismissal of any teacher on the same grounds.

While the explicit goal is legitimate – protecting minors from expressions of terrorism – in the wider context, the law threatens to severely limit the expression of teachers and the representation of Arab-Israelis in the education system. In Israeli legal terms, terrorism has become synonymous with any expression of support or empathy with the Palestinian cause – not just violent uprisings, but also commitments to self-determination, nationhood, or even sympathizing with victims of the war, many of whom are uninvolved, and far too many of whom are young children. Terrorism is not unique to one population, with Jewish terrorism being a known phenomenon. Yet, accusations of selective enforcement had already been made prior to the war, with a local organization [Hebrew] finding that from 2014-2021 the overwhelming majority of indictments for inciting terror were against Arab-Israeli suspects. Similar accusations [Hebrew] have been made since.

The law further threatens to put  teachers even more at risk of persecution for legitimate expressions or educational dialogue in addition to potential criminal sanctions than has already been the case so far. For example, in October 2023 a teacher was administratively sanctioned for telling his students that Israel “kills women and children” [Hebrew], a comment that raises questions to the legitimacy of the war, but is undoubtedly rooted in accuracy and not an incitement to terror, as the death toll in Gaza is high by all accounts.

Although not yet enacted at the time of writing, it is important to note a similar initiative, Basic Law: The Knesset (Amendment – Expanding the Reasons to Prevent Participating in Elections) [Hebrew] which passed its preliminary hearing on October 30, 2024. This initiative to amend Basic Law: the Knesset poses limits for parties to run for Knesset if they have expressed support for terror. Noting the trend in the enforcement against incitement to terror, this law could severely suppress Arab-Israeli representation in Parliament.

Another example is the stripping of family members of those involved in terror attacks of their civilian rights. Over the years, Israel has promoted various initiatives meant to deter terror that directly affect uninvolved relatives, such as the destruction of homes of families of convicted terrorists, also dubbed “domicide” by UN experts, or limitations on family unification.

However, on November 7, 2024, a new law was passed: the Law to Deport Families of Terrorists, 2024 [Hebrew]. This law allows for family members of persons convicted of terror to be deported if they knew or should have known and did not stop the act or expressed any support for it. In either of these scenarios, the family member could be deported, following a hearing, but without judicial overview, to the Gaza Strip or a different location depending on the circumstances.

This law, which has been proposed over the years but only now enacted, creates a rare precedent in which there could be widespread deportation of citizens to a place where they could surely be persecuted for their Israeli upbringing and citizenship, that is war-stricken – directly negating the customary obligation of non-refoulement not to send a person to a place where there life could be in danger.

There are other examples, such as the Youth Law (Judgement, Punishment and Treatment Methods) (Amendment No. 25 – Temporary Rule), 2024  [Hebrew]. Enacted November 7, 2024, it allows the Court to sentence minors between the ages of 12-14 who are convicted for murder in the context of terror or actions in a terrorist organization to be sentenced to prison time; or the legislative initiative to limit the right of non-citizens suspected of terror-related crime to receive legal representation [Hebrew], currently in committee.

While all these new laws and initiatives rhetorically focus on mitigating terror, in the complex socio-legal Israeli framework they threaten to severely impair the rights of Arab-Israelis. The timing of these laws cannot be ignored, as legislators lean on a bereaved national narrative – focused on hostages, survivors and loved ones in the battlefield – to enact legislation whose harsh effects will remain long after the war comes to an end.

Law is not necessarily Justice

Adopting legislation designed to mitigate and deter terror with adverse impact on civil rights is a common practice. For example, the United States of America’s infamous Patriot Act expands the tools available to the law enforcement bodies to investigate potential terrorists. The law diminishes a person’s right to privacy and limits due process procedures in relation to terror investigations, as well as enhancing the penalties and adding a number of conspiracy crimes. While this far-reaching law may have been understandable as a legislative reaction to Al-Qaeda’s brutal 9/11 attack, concerns were raised that the Patriot Act can be misused to profile Muslim Americans. Yet, compared to the tools Israel is setting in motion to combat terror, the Patriot Act does not enter the civil sphere in the same way (regarding representation in government, expression in schools, extra sentencing for minors, etc.).

The wartime context in combination with the systemic isolation of Arab identity in Israel makes it worthwhile comparing these laws to other laws enacted in a system of racial differentiation, namely apartheid.

The discussion of whether or not the State of Israel administers an apartheid regime against Palestinian nationals has been long debated and analyzed in depth by several leading human rights organizations and most recently the ICJ. While these findings intertwine Israel’s military occupation with internal law, the focus of this blog is solely on internal Israeli law, notwithstanding questions of belligerent occupation or past or ongoing war crimes. Therefore, the question is whether, irrespective of occupation law and past or ongoing war crimes, these new laws could signal an unfolding internal apartheid between Jewish and Arab Israelis.

Under South Africa’s apartheid regime, the Suppression of Communism Act (1950) declared the Communist Party an illegal organization, banning them from participating in governance and allowing the ban of publications that promoted their objectives, similarly to the legislative initiative regarding party representation in the Knesset. Yet, the majority of laws that created and enforced the system of South Africa’s apartheid were rooted in segregation. While Israelis primarily reside in either Jewish or Arab municipalities, this practice is the result of a variety of factors, including historic connections to certain areas, ramifications of early rounds of warfare and annexation as well as multiculturalism. Although de facto segregation creates problematic gaps in infrastructure and welfare, it is not rooted in law, meaning there is no prohibition to live in a certain area, and Supreme Court precedent protects minorities who want to reside in other areas.

Only time will tell whether the current Israeli legislative trend is a legitimate tool for combating terror, or a manipulation of wartime narrative that could turn Israel into an apartheid or pseudo-apartheid regime. Much will depend on interpretation and enforcement of these laws. However, teetering on the edge of this scenario should not leave anyone who wishes to see peace in the Middle East at ease.

Conclusion

While Israel’s legal system historically includes laws that are suspect from an equality viewpoint, this current wave of legislation threatens to further widespread, systemic discrimination in many facets of life. The increasingly systematic alienation of the Arab-Israeli identity through anti-terror rhetoric has the potential to further unravel the fabric of Israeli democracy and sew discrimination between its Jewish and Arab citizens.