Does Israeli Law Privilege Jews Over Non-Jews?
What Israel’s own instruments and courts state: Ka’adan on land allocation, the 1948 Declaration, the Nation-State Basic Law and the Hasson judgment.
5 justices of the Supreme Court of Israel ruled on 8 March 2000, in HCJ 6698/95 Ka’adan v. Israel Land Administration, that the State was not permitted by law to allocate state land for the communal settlement of Katzir on the basis of discrimination between Jews and non-Jews. 18 years later the Knesset enacted Basic Law: Israel as the Nation-State of the Jewish People on 19 July 2018, whose clause 5 states that the State shall be open to Jewish immigration and the ingathering of the exiles, and an eleven-justice panel of the Supreme Court of Israel dismissed the challenge to that law on 8 July 2021. Basic Law: Human Dignity and Liberty, as the Knesset publishes it with amendments through 1 May 2022, enumerates 6 rights and contains no equality clause; the equality rule applied in Ka’adan is judge-made.
| Figure | What it counts | Who published it | Period |
|---|---|---|---|
| 5 justices | Panel deciding HCJ 6698/95 Ka’adan, majority for the petitioners with one dissent on retrospectivity | Supreme Court of Israel | Judgment of 8 March 2000 |
| 11 justices | Panel hearing HCJ 5555/18 Hasson, petitions dismissed | Supreme Court of Israel | Heard 22 December 2020, judgment 8 July 2021 |
| 6 rights | Rights enumerated in Basic Law: Human Dignity and Liberty: dignity, life and body, property, personal liberty, exit and entry, privacy and intimacy | Knesset, published English translation it labels unofficial | Text as amended through 1 May 2022 |
| 0 occurrences | Occurrences of “equal”, “discrimin”, “religion”, “race” and “nationality” in the same published English text | Knesset | Text as amended through 1 May 2022 |
| 37 signatories | Members of the People’s Council who signed the Declaration of the Establishment of the State of Israel | Provisional Government of Israel, Official Gazette Number 1 | 14 May 1948 |
| 1 recommendation | Central recommendation to refrain at that stage from further constitutional anchoring of Israel’s vision by legislation | Ruth Gavison, review commissioned by the Minister of Justice on 12 August 2013 | Submitted 19 November 2014, published February 2015 |
Ka’adan held the State may not allocate land by nationality
The Supreme Court of Israel held on 8 March 2000 that the State’s duty of equality binds it when it allocates state land, including where the allocation runs through a third body. The remedy was narrower than the declaration: the Court ordered the State to consider the petitioners’ request, and expressly left open whether it could enable them to build within the framework of the law. Justice Kedmi dissented on retrospectivity alone, writing that he concurred with the fundamental approach on the value of equality.
- Paragraph 40A: “We declare that the State was not permitted, by law, to allocate state land to the Jewish Agency, for the purpose of establishing the communal settlement of Katzir on the basis of discrimination between Jews and non-Jews.”
- Paragraph 34: “The State cannot escape its legal obligation to respect the principle of equality by using a third party that adopts a discriminatory policy. What the State cannot do directly, it cannot do indirectly.”
- Paragraph 31: “There is, therefore, no contradiction between the values of the State of Israel as a Jewish and democratic state and between the absolute equality of all of its citizens.”
- Paragraph 31, on the Law of Return: “members of the Jewish nation were granted a special key to enter … but once a person has lawfully entered the home, he enjoys equal rights with all other household members.”
- Paragraph 40B: the State is to decide “with appropriate speed, whether it can enable the petitioners, within the framework of the law, to build a house for themselves within the bounds of the Katzir communal settlement.”
The rule the Court applied does not sit in the statute book. Basic Law: Human Dignity and Liberty, which the Knesset publishes in an English translation it labels unofficial, enumerates dignity, life and body, property, personal liberty, exit from and entry to Israel, and privacy and intimacy, and section 10 provides that it does not affect the validity of any law that existed before it.
The 1948 Declaration states complete equality irrespective of religion and race
The Provisional Government of Israel published the Declaration of the Establishment of the State of Israel in Official Gazette Number 1 on 14 May 1948, signed by 37 members of the People’s Council. It is the founding instrument, not a statute, and section 1 of Basic Law: Human Dignity and Liberty provides that rights are to be upheld in the spirit of its principles rather than incorporating its text.
| Sentence in the instrument | Wording, Knesset published English text |
|---|---|
| Equality | The State “will ensure complete equality of social and political rights to all its citizens irrespective of religion, race or sex” |
| Immigration | The State “will be open for Jewish immigration and for the Ingathering of the Exiles” |
| Address to Arab inhabitants | Appeals to them “to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions” |
Source: Provisional Government of Israel, Declaration of the Establishment of the State of Israel, 14 May 1948, quoted from the Knesset’s published English text. The Ministry of Foreign Affairs publishes the equality sentence with the word “inhabitants” where the Knesset text reads “citizens”; the Hebrew is the original and both English texts are translations of it.
Hasson v. Knesset dismissed the challenge and set a reading limit
An eleven-justice panel of the Supreme Court of Israel heard fifteen petitions against the 2018 Basic Law on 22 December 2020 and dismissed them on 8 July 2021, upholding the law. The Court held that the Knesset as constituent authority is “not all powerful” and has no authority, even by Basic Law, to deny or facially contradict the core character of the State as a Jewish and democratic state, deriving that limit from the Declaration of Independence, the Basic Laws, Knesset legislation and its own case law. The test it stated is narrow: whether the amendment denies the core democratic identity of the state or inflicts mortal harm on the minimal core characteristics of its identity as a Jewish and democratic state.
Clause 5 of the Nation-State Basic Law names Jewish ingathering
The Knesset publishes the enacted text of Basic Law: Israel as the Nation-State of the Jewish People in an English translation, including amendments through 1 May 2022, which the Knesset itself labels unofficial. Two clauses carry the immigration and settlement points directly.
| Clause | Text, Knesset published English translation |
|---|---|
| 5 | “The State shall be open to Jewish immigration, and the ingathering of the exiles.” |
| 7 | “The State views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and consolidation.” |
| 4(b) and 4(c) | “Arabic has a special status in the State.” “Nothing in this article shall compromise the status given to the Arabic language in practice, before this basic-law came into force.” |
Source: Knesset, Basic Law: Israel as the Nation-State of the Jewish People, adopted 5778-2018, published English translation labelled unofficial.
No Israeli body publishes a count of laws distinguishing by nationality
The State Comptroller of Israel published two chapters in its May 2022 report that bear on law enforcement: Closing Criminal Files by the Israel Police and the Office of the State Attorney, and the Samaria and Judea District follow-up audit. Neither publishes a tally of statutes or regulations that distinguish by religion or nationality, and neither disaggregates its counts by ethnic or national identity.
- The Closing Criminal Files chapter counted about 830,000 adults holding a Police Registry record for files closed without indictment, about 13% of Israel’s adult population, as at June 2021. Its breakdown is by prosecution district, and its Table 1 excludes files closed on the ground of “offender unknown”.
- The Samaria and Judea District follow-up audit recorded 12,865 cases opened in 2020 for disturbing public order, security violations and damage to property, and 48,371 traffic tickets, of which 36,074 went to Palestinians, which the audit writes as about 75%. The State Comptroller of Israel published that chapter while imposing confidentiality on sections of it.
- Ruth Gavison, appointed by the Minister of Justice on 12 August 2013, submitted recommendations on constitutional anchoring of Israel’s vision on 19 November 2014, published February 2015, recommending that the State refrain at that stage from further constitutional anchoring by legislation. The review carries no count of laws and was not adopted by any government.
Which figures here may not be added together?
The 12,865 criminal case openings and the 48,371 traffic tickets in the Samaria and Judea chapter are different universes and may not be summed or divided into one another; 36,074 of 48,371 is the audit’s “about 75%” and is not restated as exactly 75%. The Closing Criminal Files chapter’s about 55,000 lack-of-evidence closures for 2020 are published against about 90,000 files, while its Table 1 gives 54,865 against a 2020 total of 80,357; a numerator from one may not be paired with a denominator from the other. The Knesset labels its English translations of the Basic Laws unofficial, and the Hebrew governs. The Declaration’s equality sentence exists in two Israeli state English texts differing on one word, so each quotation names the text it comes from. The 0 occurrences reported above is a search of the Knesset’s published English text of Basic Law: Human Dignity and Liberty, a fact about that text.
Questions readers ask
Which court decided Ka’adan, and when?
The Supreme Court of Israel sitting as the High Court of Justice, in a five-justice panel, delivered judgment on 8 March 2000.
Did the Court order that the family be admitted to Katzir?
It did not. Paragraph 40B ordered the State to consider the request on the principle of equality and left open whether it could enable the building within the framework of the law.
What did the dissent say?
Justice Kedmi wrote that the judgment “is forward-looking and does not provide grounds for re-examining acts performed in the past”, and stated that he concurred with the fundamental approach on the value of equality.
Does Basic Law: Human Dignity and Liberty contain an equality clause?
It does not. The Knesset’s published English text enumerates 6 rights, and the words “equal”, “discrimin”, “religion”, “race” and “nationality” do not appear in it.
Does that Basic Law reach earlier statutes?
Section 10 states: “This Basic Law shall not affect the validity of any law that existed prior to the inception of the Basic Law.”
What happened to the challenge against the Nation-State Basic Law?
The Supreme Court of Israel dismissed the fifteen petitions on 8 July 2021 and upheld the law, while holding that the Knesset as constituent authority is “not all powerful”.
What did the Court say it could not review?
It set a narrow test: whether an amendment denies the core democratic identity of the state or inflicts mortal harm on the minimal core characteristics of its identity as a Jewish and democratic state.
What does clause 7 of the 2018 Basic Law say?
The Knesset’s published text reads: “The State views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and consolidation.”
What status does Arabic have under that law?
Clause 4(b) states that “Arabic has a special status in the State”, and clause 4(c) states that nothing in the article compromises the status given to Arabic in practice before the law came into force.
Who signed the 1948 Declaration?
37 members of the People’s Council, David Ben-Gurion first, on 14 May 1948, published in Official Gazette Number 1.
Is the Declaration part of Israel’s enacted law?
Section 1 of Basic Law: Human Dignity and Liberty provides that basic human rights “shall be upheld in the spirit of the principles included in the Declaration of the Establishment of the State of Israel”. The Basic Law does not enact the Declaration’s text.
Was the Gavison review adopted?
No government or Knesset acted on it. The printed volume is issued by the author’s centre, not by the Ministry of Justice, and the Knesset enacted the Nation-State Basic Law on 19 July 2018, three years after the review was published.
Does the State Comptroller publish figures by nationality?
The Closing Criminal Files chapter carries no ethnic, national or residence breakdown of complainants or suspects; its district breakdown is by criminal District Attorney’s office, of which its own footnote names six.
Which English text of the Declaration should be quoted?
Either, named. The Knesset publishes “all its citizens” and the Ministry of Foreign Affairs publishes “all its inhabitants” in the same sentence, and both are Israeli government publications of a Hebrew original.
Sources
- Gavison, Ruth, 2015. Constitutional Anchoring of Israel’s Vision? Recommendations under the Minister of Justice’s Appointment of August 2013. Metzilah Center, Jerusalem. National Library of Israel record 990038203070205171. Government-commissioned expert review.
- Israeli Supreme Court, 2000. HCJ 6698/95 Ka’adan v. Israel Land Administration. Judgment of 8 March 2000. English text published by the Cardozo Israeli Supreme Court Project. Official or primary record.
- Israeli Supreme Court, 2021. HCJ 5555/18 Hasson v. Knesset. Judgment of 8 July 2021. English coverage via the Cardozo Israeli Supreme Court Project. Official or primary record.
- Knesset, 1992. Basic Law: Human Dignity and Liberty, 5752-1992. Published English translation including amendments through 1 May 2022. main.knesset.gov.il. Official or primary record.
- Knesset, 2018. Basic Law: Israel as the Nation-State of the Jewish People. Published English translation, amendments through 1 May 2022. main.knesset.gov.il. Official or primary record.
- Provisional Government of Israel, 1948. Declaration of the Establishment of the State of Israel. Official Gazette Number 1, Tel Aviv, 14 May 1948. Official or primary record.
- State Comptroller of Israel, 2022. Closing Criminal Files by the Israel Police and the Office of the State Attorney. State Comptroller Report, May 2022, Chapter One. Catalogue Number 2022-A-002. Official or primary record.
- State Comptroller of Israel, 2022. Interdisciplinary Audit: Samaria and Judea District of the Israel Police, Follow-up Audit. State Comptroller Report, May 2022, Chapter Four. mevaker.gov.il. Official or primary record.
