The Israeli Nation-State Law: Is ours a moral response? - IOL

11 September 2018 - (T)o be credible, moral claims must by their nature be universally applicable – and must be seen to be so. To focus on Israel alone fails the test of consistency. The criticism that Israel is facing on this score is less a case of double standards, than the absence of any real standard at all. For the moment, it is, in a very real sense, profoundly immoral.

Terence Corrigan

The promise of South Africa’s transition to democracy went beyond new institutions and inclusive practices: it consciously sought to pursue a higher standard of morality in domestic and global terms. In those early years, expectations were heady that South Africa would provide ethical leadership in international affairs. Nelson Mandela famously committed to making human rights the ‘guiding light’ of its foreign policy.

The experience of two and a half decades has blunted this optimism; but there still appears to be a remnant of expectation in South Africa that normative considerations will inform foreign policy and the country’s role in the world. 

This has been on vivid display in respect of a bill recently passed by the Israeli Parliament, which defines Israel as the nation-state of the Jewish People. It has attracted criticism from many quarters.

A recent television debate on eNCA, hosted by television journalist Jane Dutton, gave some insight into South Africa’s stance. A semi-official position was articulated by Rev Eddie Makue, chairman of the parliamentary select committee on international relations and trade.

"We know that anything that is racial is not good,’ he opined, ‘and what should happen is that in order to be a civilised nation it is going to be important that we do away with any form of discrimination and racial discrimination as a key element of what we cannot tolerate in any part of the world."

Noble, global sentiments indeed. 

"You couldn’t get more racial that this law, could you?" shot back Ms Dutton.

"I doubt it very much because it’s such a blatant law, quite clearly defining people based on their origins as a people and also on the language they are speaking."

Actually, by no definition is the law racist, as it makes no mention of race, which is a pseudo-biological idea. Its frame of reference is ethnicity and culture, as a reading of the law would make clear. (Ms Dutton’s challenge that this is ‘pure racist hierarchy’ likely owes more to conceptual confusion and a lack of familiarity with the law than to uncompromising speaking-truth-to-power.)

The impact of Israel’s nation-state law will probably be less profound on everyday life than many expect – both supporters and opponents. It defines the character of the state, rather than the civil rights of its people. Even the derecognition of Arabic as an official language is paired with a requirement that it continue to be used for official purposes. Nevertheless, concerns about what this legislation means for Israel’s minorities are not without foundation, since it implies a greater attachment to and ownership of the state by one part of its population than by others. Israel is, by all accounts, a fractious and divided society.

But this is far from unique to Israel. Cultural, ethnic and religious identity has long been a means of defining countries. It goes back to antiquity, and it is how the ‘nation-state’ came into being. Any number of countries have implicit or explicit constitutional and legal arrangements which reference their cultural origins. Indeed, given the criticism directed at Israel, it is noteworthy how little attention has been paid to equivalents elsewhere.

State churches exist in England, Norway and Denmark, despite declining religious adherence. Many other predominantly Christian countries, such as Argentina, Finland, Hungary, Peru, Samoa and Zambia, recognise a special place for their religious heritage. Ireland’s constitution "acknowledges that the homage of public worship is due to Almighty God". Buddhism has an elevated position in a number of South-East Asian countries, namely Bhutan, Cambodia, Laos, Myanmar, Sri Lanka and Thailand. A chain of countries from Mauritania to Pakistan (and others elsewhere, such as multi-ethnic, multi-lingual and multi-religious Malaysia) declare Islam the state religion. Several explicitly include this as part of their very names, such as the Islamic Republic of Afghanistan and the Islamic Republic of Iran.

In Germany and Greece, special provisions exist for the acquisition of citizenship for those with attenuated ancestral links. Liberia has historically limited citizenship and land ownership to black people, excluding particularly its small Lebanese minority. President George Weah has indicated an intent to change this – his government has called it ‘racist’ – but has encountered stiff resistance to doing so. And, stressing its connection to the African diaspora, in 2000 Ghana approved a ‘right of return’ law, geared at making immigration easier for black people. (This mirrors the position of the African Union, which seeks relationships with Africa-descended people, ‘irrespective of their citizenship and nationality’.)

Contrary to the hopes of universalists and multiculturalists, the assertion of such identities remains strong worldwide, and is perhaps even growing. Much attention has been paid to the rise of ‘populist’ or ‘nativist’ movements in Europe and the United States. This phenomenon has not been confined to the West. 

China, for example, has recently advocated removing materials that promote ‘Western Values’ from its university curricula. Indeed, it has sought to defend its failings on democracy and human rights as merely being a culturally appropriate ‘Chinese understanding’ (as one Chinese diplomat put it to this writer) of these concepts. 

Such ‘Chinese understandings’ draw in turn on a largely ethno-cultural view of politics. In this view, the Chinese – more specifically, the Han Chinese majority – seek to structure their state as they see fit (under, of course, the non-negotiable ‘guidance’ of the Communist Party). Of no small importance to China’s non-Han minorities, numbering in excess of 100 million people, this has expressed itself in an often abusive and quasi-official ethnic chauvinism. A report by The Economist in 2016 took up this issue:
"The conflation of Han and national identity underlies the uneasy relationship between that majority and China’s ethnic-minority citizens. Officialdom theoretically treats minorities as equal and even grants them certain privileges. Yet in practice ethnic groups, particularly those from China’s borderlands, who are visually distinctive, are discriminated against and increasingly marginalised as ethnic Han have moved into their home regions."

The Chinese state has encouraged the settlement of Han Chinese in the Tibetan and Mongol regions, and cracked down on Muslim Uighur cultural practices in Xinjiang (including the wearing of ‘abnormally’ long beards) – recent reports of mass internments make for uncomfortable reading.

On the international stage, China has at times assumed a mandate to intervene on behalf of ethnic Chinese communities abroad, and to demand their loyalty, irrespective of their actual citizenship.

Closer to home, Egypt styles itself an ‘Arab Republic’, with Islam as its state religion, and Islamic law is regarded as the principle source of legislation. Its Coptic minority suffers pervasive discrimination. Samuel Tadros, Senior Fellow at the Center for Religious Freedom at the Hudson Institute in the United States, writes:
"Despite proclamations of equality by the state, a Copt has never been an equal Egyptian citizen in the eyes of the law. Egyptian laws are, in fact, designed to remind him of his second-class nature. For him, building a church remains a herculean task. He must follow Islamic inheritance laws, and cannot adopt children. Egypt’s blasphemy laws almost exclusively target him. Legally, he is not barred from being appointed to any position. But functionally, this is the reality. The exclusion of Copts from important government positions is pervasive. … An unofficial one percent quota for Copts is maintained in the military, police, judiciary, and foreign service, while no single Copt is allowed in the state security or intelligence services. Even his history is not immune to discrimination, with Coptic history and the contributions of Copts to Egypt through the centuries excluded from the country’s textbooks.

Yet, despite the very real moral issues these cases raise, despite the rising influence of China across the world, and the common membership that South Africa and Egypt have in the African Union, despite enthusiasm for the Chinese connection on the part of the South African government (and a good number of opinion formers) and for the ideals of Pan-Africanism, neither of these issues has provoked much interest in South Africa. No aggressive questioning from talk show hosts, no pious condemnation from parliamentarians. And little sense that South Africa has a moral duty to take them up. There is no indication that South Africa intends persuading China and Egypt to become ‘civilised’ nations, along the lines that Rev Makue regards as imperative for Israel.

It is also, incidentally, incorrect to say that ‘no one’ is concerned about the implications of the ethnic characters of the constitutional and legal regimes of countries other than Israel – as Israel’s supporters might claim. Voices are raised about this across the world. (For example, the long-standing and constitutionally enshrined ‘special position of the Malays and natives of any of the States of Sabah and Sarawak’ – in terms of religion, language and economic opportunity, and in other words, going rather beyond the Israeli law – have led to charges of ‘apartheid’ in Malaysia.) It is just that, for the most part, the South African state has shown itself indifferent to them.

More than that: while Israel’s critics condemn it for asserting its own national identity, they may do well to look at the intentions of the Palestinians in the future state towards which they aspire. Israel’s law is mirrored by the draft proto-constitution of the Palestinian Authority. This accords Palestine an ethnic identity (part of the ‘Arab world’), establishes Islam as the official religion and invokes Sharia as the source of legislation. It is unclear what this would mean for its declining Christian minority. (Or non-believers for that matter: in 2010, an atheist blogger named Waleed Al-Husseini was imprisoned for blasphemy.) There would be a great irony to rejecting Israel’s right to exist as a Jewish state, while assisting the emergence of an Islamic one in Palestine. 

This is not mere ‘whataboutery’. It goes to the heart of any moral expectations for policy, and thus whether South Africa can reignite morality as a ‘guiding light’ in its affairs. Israel’s nation-state law is, for better or worse, not outside global norms as they exist now. This does not exclude it from criticism. Should an adverse impact be evident on the lives of ordinary human beings – they, after all, and not the state, nor the religious or cultural traditions of their societies, are the only true bearers of rights – this will be well merited. But to be credible, moral claims must by their nature be universally applicable – and must be seen to be so. To focus on Israel alone fails the test of consistency.  The criticism that Israel is facing on this score is less a case of double standards, than the absence of any real standard at all. For the moment, it is, in a very real sense, profoundly immoral.

* Terence Corrigan is a project manager at the Institute of Race Relations.