George Bisharat & Nimer Sultany, 15 August 2010
George Bisharat is a professor at Hastings College of the Law in San Francisco. Nimer Sultany is a civil rights attorney in Israel and doctoral candidate at Harvard Law School.
Should Israel be encouraged to enact legislation guaranteeing equal rights for all of its citizens as part of any peace agreement with the Palestinians?
Israel’s systematic discrimination against Arabs was highlighted recently when Donna Shalala, University of Miami president and former Health and Human Services secretary, was detained for three hours, grilled and subjected to an extended luggage search upon her departure from Israel.
Shalala, of Lebanese Arab descent and a long-time supporter of Israel, had visited the country with other university leaders at the invitation of the American Jewish Congress, but had stayed beyond the planned itinerary for several days. It seems evident that, despite her stature, she was a victim of profiling.
But the indignities that Shalala suffered pale in comparison to those faced by the 1.3 million Palestinian citizens of Israel on a daily basis, and not just at the airport.
Adalah, the Legal Center for Minority Rights in Israel, counts more than 35 Israeli laws explicitly privileging Jews over non-Jews. Other Israeli laws appear neutral, but are applied in discriminatory fashion. For example, laws facilitating government land seizures make no reference to Palestinians, but nonetheless have been used almost exclusively to expropriate their properties for Jewish settlements.
Consider what it would be like if:
• Our Constitution defined the union as a “white Christian democratic state?”
• Our laws still barred marriage across ethnic-religious lines?
• Our government appointed a Chief Priest, empowered to define membership criteria for the white Christian nation?
• Our government legally enabled immigration by white Christians while barring it for others?
• Our government funded a Center for Demography that worked to increase the birth rates of white Christians to ensure their majority status?
These examples all have parallels in Israeli practices.
While Israel’s Palestinian citizens have rights to vote, run for office, form political parties and to speak relatively freely, they remain politically marginalized. No Palestinian party has ever been invited to join a ruling coalition. In recent years, Palestinian politicians and community leaders have been criminally prosecuted or hounded into exile.
Nadim Rouhana, social psychologist and director of Mada al-Carmel (a center studying Palestinian citizens of Israel) reports: “Our empirical research reveals that many Palestinian citizens are alienated from the Israeli state. At a deep psychological level, the daily message conveyed in Israeli public discourse is: `You are not one of us. You don’t belong here. You are permanent outsiders.’ Imagine: we, whose families have lived here for centuries, hear this even from recently immigrated Jewish Israeli politicians.”
Palestinian rights are not respected in the Israeli legal system. Israel has no written constitution, only “Basic Laws” that were enacted piecemeal over time. None enshrines equality, and efforts by Palestinian lawmakers in Israel’s Knesset to add an explicit guarantee of equal rights have been rebuffed.
The 1948 Israeli Declaration of Independence promised equal rights to all citizens in a Jewish state, and has occasionally been cited by the Israeli High Court. But a declaration of independence does not play the same legal role as a constitution or basic law. As students of American history know, the U.S. Declaration of Independence held that “all men are created equal” but failed to provide legal leverage to dismantle slavery, or to empower women to vote. Equal rights were only installed by the 14th Amendment to the Constitution, and women’s suffrage only by the 19th Amendment. Lacking the necessary tools, the Israeli High Court has failed to consistently protect equal rights for Palestinian citizens.
Shalala’s treatment in Israel was, no doubt, demeaning. The incident’s effect nonetheless will be constructive if it serves to alert more Americans to Israel’s discrimination against its Palestinian citizens — and creates pressure on Israel to adopt equal rights for all. Only then will durable peace prevail in the Middle East.