Is there still hope for Zionism in the Israeli courts?
Is there still hope for Zionism in the Israeli courts?
At first, this may seem like a surprising question. Israel’s legal system, after all, is committed in principle to the idea of a Jewish state. The Zionist worldview, as emphasized by former chief justice of the Supreme Court Shimon Agranat in 1965, is a “constitutional given.” As Agranat wrote in one of his famous rulings, “Not only is Israel a sovereign, independent, freedom-loving country, characterized by a government of the people, it was also established as ‘a Jewish state in the land of Israel.’”1 While no Israeli judge has, as yet, overruled that declaration, it is highly doubtful that Agranat’s successors currently serving in the Israeli judiciary are willing to stand behind it and support it resolutely—in fact, quite the contrary. Over the past two decades, three cases have been brought before the Supreme Court that have tested the commitment of the state’s judicial authorities to the fundamental principles of Zionism. The outcome of these cases (or likely outcome, as one of them is still pending) should be highly disturbing to the decisive majority of Israelis who still believe in the idea of a Jewish state.
The first ruling, which caused considerable public repercussions when it was issued in 1995, concerned Adel Kaadan, an Arab Israeli who sought to lease a plot of land from the Katzir community on which to build his home. From the outset, the chances that his request would be granted were not very good. Katzir, located in the Nahal Iron region of the Galilee, was built by the Jewish Agency in 1982 on state land leased from the Israel Land Administration (ILA). At the time, the agency felt the need to strengthen the Jewish presence in the region, which is inhabited by a large Arab population. The community’s bylaws provided that membership would be open only to someone who had “completed compulsory service under the Defense Service Law… or is exempt from compulsory service under the Law, or whose army service was deferred under that Law.”2 In other words, only to Jews. Needless to say, Adel Kaadan did not meet those conditions.
When his request was denied, however, Kaadan petitioned the Supreme Court. And in March 2000, after lengthy hearings, the court accepted the petitioner’s argument that the establishment of communities designated exclusively for Jews violated the principle of equality. In a ruling that aroused much controversy, the court held that “the state was not permitted by law to allocate state land to the Jewish Agency for the purpose of establishing the community of Katzir based on discrimination between Jews and non-Jews.” Then-chief justice Aharon Barak, who headed the panel, explained that “not only do the values of the State of Israel as a Jewish state not require discrimination based on religion or nationality, these values themselves prohibit discrimination and require equality between religions and nationalities.”3
Four years later, this story was repeated with only minor variations when Fuad and Bahaa Abu Riyya, a doctor and a lawyer, wanted to buy a home in the Makosh neighborhood of the Galilean town of Carmiel, which was built on land owned by the Jewish National Fund (JNF). The ILA, which administers JNF land, refused to approve the transaction, claiming that the fund’s charter permits only Jews to lease its property. The Abu Riyya family also petitioned the Supreme Court, and subsequently, the Association for Civil Rights in Israel as well as the Arab organizations Adalah and the Arab Center for Alternative Planning all filed comprehensive petitions against the ILA, claiming that its general policy of allocating JNF land only to Jews violates the principle of equality and discriminates against Israel’s non-Jewish citizens.4 The first petition employed the harshest language of all, asserting that JNF policy was “patently illegal.”5
The Abu Riyya couple’s specific complaint was resolved in the interim, but the petitions against the JNF’s fundamental right to designate the land it owns exclusively for Jewish communities are still pending in the Supreme Court.6 The JNF has responded to these petitions by contending that their acceptance means nothing less than the total renunciation of Zionism. The state, however, in its capacity as respondent on behalf of the ILA, believes otherwise. Attorney General Menachem Mazuz stated unequivocally that justice favors the petitioners: “The constitutional principle which requires the ILA to distribute state lands equally, requires… the same even in regard to property owned by the JNF.” He went on to maintain that “this principle applies even if it contradicts the JNF’s charter.”7 Although the court has still not rendered a decision, remarks made by the panel of judges adjudicating the petitions, headed by Chief Justice Dorit Beinisch, indicate that they concur with the opinion of the attorney general.8
Whatever the eventual outcome of this specific case, it is clear that a dam has burst. In 2006, newlyweds Ahmed and Fatna Zbeidat applied to live in the northern community of Rakefet, which is under the jurisdiction of the Misgav Regional Council. The admission procedure at Rakefet, as is customary in all similar communities, includes referring the candidates to a private evaluation institute in order to determine the extent of their “social compatibility.” In this case, the institute concluded that, due to Mr. Zbeidat’s problematic social skills and his wife’s individualistic personality, the Zbeidats was not suited to life in this particular communal setting. On the basis of this evaluation, the Misgav Regional Council Admissions Committee, and subsequently the ILA Appeals Committee, determined that the couple could not join the community.9
The affair did not end there, of course. The Zbeidats, in conjunction with Adalah,the Mizrahi Democratic Rainbow Coalition for Social Justice,and the Jerusalem-based Open House for Pride and Tolerance petitioned the Supreme Court against both the decision and the use of social compatibility criteria by Rakefet in particular and similar communities in general. The Zbeidats argued that these criteria, in effect, serve to discriminate against applicants “for reasons related to personality traits, social and personal status, political outlook, skin color, and ethnic or national origin,” in violation of basic rights to dignity, liberty, and equality. “It is not acceptable,” the petitioners wrote, “to preclude an Israeli citizen from building his home on public land which public law dictates must be equitably distributed, in accordance with the code of social justice.”10 In October 2007, Supreme Court Justice Miriam Naor issued an interim order instructing the ILA and the Rakefet community to allocate a plot of land to the Zbeidats.11
There are those, no doubt, who will see a guiding hand behind these three cases, and ascribe to the Arab organizations involved a less idealistic motive than fighting discrimination: namely a calculated and methodical effort to affect the demographic and residential maps of the State of Israel. There may or may not be some truth to this hypothesis. In either event, the questions raised by these cases cut to the very essence of the Zionist enterprise, and exacerbate a bitter and longstanding conflict over its purpose and justification.
In this context, it is important to emphasize that while Zionism was never a monolithic movement, and its various factions understood its essential attributes differently, Jewish settlement in the land of Israel was perceived by all of them as a primary goal. This complemented another objective, the immigration of Jews to their historical homeland, seen by generations of Zionists as the basis of the entire project of national renewal. The job of realizing these aspirations was given to such institutions as the Zionist Federation, the JNF, and the Jewish Agency, which, with the aid and support of private individuals, purchased territory throughout the country for the purpose of “redeeming the land.” A popular song once sung by Jewish children throughout the world described this collective effort and its purpose:
I will tell you, little girl,And you, little boy,How it is in the land of Israel.Land is redeemed:A dunam here, and a dunam there,Clump by clump—That is how we redeem our people’s landFrom north to south.On the wall hangs a boxA blue boxFor every cent that goes insideLand is redeemed.12
The Kaadan, Abu Riyya, and Zbeidat petitions (and others which have followed in their wake) have placed the effort to settle Jews on land within the boundaries of the State of Israel into question—judicially, politically, and morally. They do so by portraying it as blatant discrimination on ethnic grounds, unworthy of an enlightened country. Whatever our opinion may be regarding the real motives behind these petitions, there is no doubt that the issues they raise are worthy of serious discussion. Moreover, if the true meaning of their demand for equal—or ostensibly equal—land distribution is to put Zionism itself on trial, then it is appropriate to present, against such claims—and against the judicial authorities’ predilection for acquiescing to them—a sound and reasoned argument in favor of preserving the Jewish character of the State of Israel.