25 + 1 Since Oslo – Equality is Still the “Elephant in the Room”

Writing on the 25th anniversary of the Oslo accords this time last year, Jan Egeland, the Norwegian diplomat, former politician and current head of the Norwegian Refugee Council, who helped organize back-channel talks that led to the framework agreement between Israel and the PLO two-and-a-half decades ago, observed that “[d]espite the grim trends, there is still a way out of the vicious cycle of conflict. […] It can only be a matter of time”, writes Egeland, “before Israeli leadership realizes its long-term security is dependent on equal rights and dignity for millions of disillusioned Palestinian youth”.

Referring to the situation in the Gaza Strip, Egeland’s comment raised a broader issue—equality between Jewish Israelis, Palestinians and others as the foundation for a solution to the protracted conflict—that few world leaders, whether mediators, donors or interested bystanders, appear willing to talk about publicly. This seemed starkly evident two years ago when UN Secretary-General António Guterres ordered the removal of a report on Israeli Practices Towards the Palestinian People and the Question of Apartheid from the international organization’s website. Whatever the reasons for the decision (the Secretary-General’s spokesperson said the UN report was issued without prior consultation), Guterres missed an important opportunity to address an issue that is arguably central to the conflict and its resolution.

In remarks prior to the UN General Assembly’s annual meeting last year, the Secretary-General appeared to take a small step forward in publicly broaching the issue stating that he is “a strong believer” that a one-state solution for Palestinians and Israelis “is theoretically possible if it is the democratic solution”. While the comment appeared to be carefully calibrated, what stands out is the Secretary-General’s emphasis on a “democratic solution”. Guterres apparent hedge could be cut in two possible ways.

On the one hand, it seems likely that the Secretary-General was alluding to the principle that has governed international efforts to resolve the long-standing struggle since the 1948 war, namely, that the parties themselves would have to agree to a solution. Notably, this was not the UN position, nor that of its Secretary-General, the year prior when a majority of states with the assistance of Trygve Lie recommended the division of Mandate Palestine against the wishes of its Arab majority population. Having failed to secure Israeli agreement on the establishment of a secular democratic state, the Palestinian leadership gradually shifted towards a two-state solution.

On the other hand, Guterres hedge that a one-state solution be a democratic one might refer to other democratic principles, in particular, equality and non-discrimination. Some have warned in light of Israel’s ongoing colonization of the West Bank, including the eastern neighbourhoods of Jerusalem, for example, about a de facto one-state solution that is akin to apartheid under international law. The Secretary-General’s comment was especially interesting in light of a visit to the United Nations by Palestinian Knesset members to discuss Israel’s recently adopted Basic Law defining Israel as the nation state of the Jewish people. The Secretary-General nevertheless reverted to the well-known adage that there is no solution, but a two-state solution to the conflict or as he has otherwise stated—there is no ‘Plan B’.

Guterres’ remarks aside, the few attempts by international mediators, donors and others to address the issue often appear confused or ill-informed about the nature of inequality between Jews and Palestinians (and others) whether inside the state of Israel or in the neighbouring territories (West Bank, East Jerusalem, Gaza Strip) that it has occupied for more than half a century. Or perhaps they just don’t want to talk about it. After all, it raises an issue that is not only “uncomfortable” for close allies with racial histories and contractual relations that are supposedly governed by respect for human rights, it also raises troubling questions about the potential complicity of third states over a period of time that inevitably returns discussion to the origins of the struggle. This idea of looking back as a way to move forward, increasingly common to conflict resolution in the post-Cold War period, has been largely albeit not completely rejected during official negotiations, at least in forms applied to conflicts elsewhere, as relevant to Palestine/Israel.

Reverting back to the issue at hand, that is to say, equality and non-discrimination, take, for example, the Obama administration’s efforts to facilitate an agreed solution to the conflict over Palestine/Israel. Several months after the “ESCWA incident”, the Israeli daily Ha’aretz carried a report about administration plans for mid-east peace. According to a draft working paper quoted in the report, American officials recommended that a peace agreement between the PLO and Israel

will need to be based on a shared commitment to fulfilling the vision of two states for two peoples, with full equal rights and no discrimination against any member of any ethnic or religious community. Achieving this outcome of two states for two peoplesPalestine, the nation-state of the Palestinian people, living in peace with Israel, the nation-state of the Jewish peoplewill enable the establishment of full diplomatic relations between the two states.

An apparent effort to reconcile longstanding Palestinian demands for equality with the Israeli government’s more recent demand for recognition of Israel as a Jewish state, the carefully worded paragraph overlooks or ignores the direct relationship between inequality and Israel’s self-definition as a Jewish state. Opining on Israel’s Jewish character some three decades ago, a majority of the country’s highest court observed (Ben Shalom v. Central Elections Committee) that the preferential treatment of Jews is among several principles that make Israel a Jewish state.

In an article on Israel’s “Jewish and democratic” character, penned over a decade before the adoption of the above-mentioned Basic Law that defines Israel as the nation state of the Jewish people, Nadim Rouhana, director of the international negotiation and conflict resolution program at Tufts University, describes “the collective inability or unwillingness [of the Jewish majority] to accept that discriminatory policies toward the non-Jewish minority contradict democratic processes [as an] act of national self-deception”. The preferential treatment of Jews (which includes those who do not reside in the country), as Rouhana further explains extends to

the distribution of land and water resources; planning and zoning; economic investment strategies and business and tax advantages; citizenship and immigration laws; preferential social, educational, and economic treatment; control over the educational curricula; preference in governmental and other positions; and the determination of national language, national holidays, days of rest, and so forth.

Explaining the The Legal Status of the Arabs in Israel nearly three decades ago, Israeli legal expert David Kretzmer identified three forms of discrimination:

  • overt: statutes either expressly adopt the criterion of Jew, non-Jewish or Arab in defining rights or obligations, or given special status to organizations that adopt such criteria as the basis for their operations [e.g., Jewish Agency, World Zionist Organization, Jewish National Fund];
  • covert: use of seemingly non-discriminatory criteria which lead in fact to different rules or arrangements being applied to different groups, along ethnic, religious national or sexual lines; and,
  • institutional: budgetary, allocation of resources, implementation of law (focuses on results rather than intent)

The more than year old Basic Law defining Israel as the nation state of the Jewish people goes one step further. As Adalah, the Legal Center for Arab Minority Rights in Israel, explains

there is a difference between racism and racist practices and a Basic Law that requires, as a constitutional mandate, racist acts. […] In so doing, it transforms discrimination into a constitutional, systematic and institutional principle, and into a basic element of the foundations of Israeli law. Unlike daily practice, where one can argue against the validity of discrimination because it is committed in violation of the principle of the rule of law, a law clearly articulates its intention for the realization of its objectives, and it turns illegitimate practices in and of themselves into an expression of the rule of law.

Granting non-Jewish citizens, the majority of whom are Palestinian, full equal rights in the plain meaning of the term and prohibiting discrimination on the basis of ethnic or religious origin as stated in the US working paper would thus appear to negate Israel’s Jewish character. More accurately, it would require equal treatment of all the country’s citizens.

A careful reading of the paragraph, however, reveals that American mediators, who consulted Israeli officials during the drafting process, appear to have left a significant loophole, whether intentionally or not, that would allow Israel to retain its self-definition as a Jewish state while at the same time appearing to endorse the overarching and universal principles of equality and non-discrimination. This is because the text fails to mention discrimination on the basis of national origin which is the foundation for both differential and discriminatory treatment between Jews and non-Jews, whether overt, covert or institutional, with regard to the exercise of fundamental (albeit not all) rights inside the state of Israel and in the Israeli-occupied West Bank, East Jerusalem, Gaza Strip.

That said, setting aside the situation in the 1967 Israeli-occupied Palestinian territories, it is important to acknowledge two points about inequality and discrimination. First, respect for the principles of equality and non-discrimination in Israeli law is not completely lacking. A number of ordinary statutes, for example, prohibit discrimination in specific areas, such as employment, and with reference to specific groups, including women and persons with disabilities. As Adalah points out, however, there is no corresponding statute that relates to the fundamental right to equality for the country’s Palestinian minority. The latter notwithstanding, it is the above protections in specific areas that enable Israeli authorities to describe the country as democratic in the sense of according equal rights to all its citizens. As Israeli Prime Minister Benjamin Netanyahu put it last year in his remarks to members of the UN General Assembly:

Israel’s Arab citizens vote in our elections, serve in our parliament, preside over our courts, and have exactly the same individual rights as all other Israeli citizens. Yet here at the UN, Israel is shamefully accused of apartheid.

Comparing Israel to other member states, Netanyahu further argued that no other country is

denigrated or libelled for celebrating their unique national identity. Only is Israel denigrated. Only Israel is libelled. What is unique about the Jewish people is not that we have a nation state. What is unique is that many still oppose us having a nation state.

What is, in fact, largely unique about the state of Israel, a point which the Prime Minister underscored through reference to the recently adopted Basic Law: Israel as the Nation State of the Jewish People, but avoided stating explicitly, is the absence of constitutional protection for the fundamental principles of equality and the prohibition of racial discrimination. This is what many oppose. Members of Israel’s high court and various legal scholars have argued that equality and non-discrimination are implicit in the concept of human dignity that is enshrined in Israel’s constitutional law. Writing before her appointment to Israel’s high court, Daphne Barak-Erez observed that “it is intellectually dishonest to claim that equality is mandated by that text alone”. Moreover, a number of Basic Laws adopted in recent decades, that is to say, laws which comprise Israel’s evolving constitution, allow for exemptions when equality and the prohibition of discrimination undermine the principles that are central to Israel’s self-definition as a Jewish state.

The second point that is worth remembering is that there have been attempts over the past seven decades to enshrine equality and non-discrimination as constitutional principles beginning with the drafting of a constitution after the 1948 Arab-Israeli war. A provisional constitutional adopted by Israel’s Constituent Assembly, precursor to the Knesset, in early 1949, for example, affirmed that

[a]ll persons within the jurisdiction of the State of Israel shall be entitled in equal measure to the protection of the law. No discrimination of any kind shall be made by the State between the inhabitants on the grounds of race, religion, language or sex.

This provision was apparently written with General Assembly Resolution 181 in mind. Otherwise known as the partition plan, Israel’s declaration of independence referred to the resolution as one of the state’s founding documents. The above-mentioned draft constitution further affirmed that

[a]ll citizens of the State shall enjoy equal civic and political rights. No citizen shall be at a disadvantage as a candidate for public office or employment or in the matter of promotion, on account of his race, religion, language or sex.

The principles of equal and non-discrimination were included in various draft bills of human rights in the decades that followed, but efforts to enshrine the principles as fundamental constitutional values continued to run up against counter pressures that weighed more heavily in favour of the state’s Jewish character. Unfortunately, legislative developments have moved even further towards emphasizing Israel’s Jewish rather than its democratic character culminating in the adoption last year of the Basic Law defining Israel as the nation state of the Jewish people. According to a study, by Yousef Jabareen, who has taught law at the universities of Haifa and Tel Avid, all of the country’s Basic Laws, which make up Israel’s evolving constitution, “express a fundamental desire to preserve the Jewish character of the state and/or protect the interests and institutions of the Jewish people”.

In its first report on the state of Israel’s compliance with the Convention on the Elimination of All Forms of Racial Discrimination nearly four decades ago, the UN committee responsible for oversight of state signatories expressed concern that “the elimination of racial discrimination did not rest upon the firm legal foundation required by the Convention” and that “[i]t was indispensable for Israel’s national legislation to be brought into line with articles of the Convention and for the principles enunciated therein to be given practical application”. More recently, the Committee recommended that Israel “ensure that the prohibition of racial discrimination and the principle of equality be enacted as general norms of high status in domestic law”. The Committee further recommended that

the State party ensure that the definition of Israel as a Jewish nation State does not result, in any systemic distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin in the enjoyment of human rights.

The Basic Law approved by Israel’s Knesset last year, which defines the country as the nation state of the Jewish people, as noted above, runs completely counter to the above recommendation.

I’m not sure that Egeland was trying to draw attention to the fundamental inequality through which Israel governs, albeit in different but inter-related ways, the lives of Palestinians, whether citizens of Israel or residents of the Israeli-occupied 1967 territories, when he wrote his commentary on the twenty-fifth anniversary of Oslo and prospects for “a way out of the vicious cycle of conflict”. His concluding statement, limited to remarks on Israel’s more than fifty-year military occupation, nevertheless seems to underscore the findings of a recent report by the Oslo-based Peace Research Institute on Inequality and Armed Conflict.

unless America’s “ultimate deal” delivers equal rights, justice and security, grounded in respect for international law, it will only serve to strengthen political extremism among Israelis and Palestinians, further destabilize a volatile region, and ensure that too many Palestinians will continue to live under seemingly endless military occupation.

This will not be an easy conversation. Those with privilege are unlikely to forego their privilege willingly. None of this makes the situation in Palestine/Israel different from other states where inequality and racial discrimination are the cause of long-running disputes. The question that has to be asked, rather, is why respect for and protection of the fundamental principles of equality and non-discrimination in Palestine/Israel continue to be the elephant in the room.

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