Measures Threaten Discrimination; Chill Freedom of Expression
March 30, 2011
These laws threaten Palestinian Arab citizens of Israel and others with yet more officially sanctioned discrimination. Israeli parliamentarians should be working hard to end glaring inequality, not pushing through discriminatory laws to control who can live where and to create a single government-approved view of Israel's history.
Sarah Leah Whitson, Middle East director at Human Rights Watch

(Jerusalem) - Two new Israeli laws affecting Israel's Palestinian Arab residents would promote discrimination and stifle free expression, Human Rights Watch said today. One would authorize rural, Jewish-majority communities to reject Palestinian Arab citizens of Israel and other "unsuitable" applicants for residency, and the other would chill expression regarding a key moment in the history of Palestinian citizens, Human Rights Watch said.

"These laws threaten Palestinian Arab citizens of Israel and others with yet more officially sanctioned discrimination," said Sarah Leah Whitson, Middle East director at Human Rights Watch. "Israeli parliamentarians should be working hard to end glaring inequality, not pushing through discriminatory laws to control who can live where and to create a single government-approved view of Israel's history."

The Knesset passed both laws on March 23, 2011. One officially authorizes "admissions committees" in about 300 Jewish-majority communities to reject applicants for residency who do not meet vague "social suitability" criteria. The measure anchors in law a practice that has been the basis for unjustly rejecting applications by Palestinian Arab citizens of Israel as well as members of socially marginalized groups such as Jews of non-European ancestry and single-parent families.

The second law would heavily fine any government-funded institution, including municipalities that provide health and education, for commemorating the "Nakba" - the Arabic term to describe the destruction of Palestinian villages and expulsion of their residents after Israel's declaration of independence - and for expression deemed to "negate the existence of Israel as a Jewish and democratic state."

The "admissions committee" law requires anyone seeking to move to any community in the Negev and Galilee regions with fewer than 400 families to obtain approval from committees consisting of town residents, a member of the Jewish Agency or World Zionist Organization, and several others. The law empowers these committees to reject candidates who, among other things, "are ill-suited to the community's way of life" or "might harm the community's fabric."

There are more than 300 such small communities in the Negev and Galilee, either small cooperative "kibbutzes" with some shared property, farming communities called "moshavs," or small rural "community towns," on land leased by the state. These communities already have admissions committees established under regulations of the Israel Land Authority, the state agency that leases them their land. But the committees and screening procedures had not been specifically authorized under national laws.

Although Palestinian Arabs are in the majority in the Negev and Galilee, the state has never allocated lands to allow these Israeli citizens to establish small communities there. All of the towns and communities to which the new law applies were established for and have a majority of Jewish residents.

Parliamentary statements indicate that the law's sponsors intended it to allow majority-Jewish communities to maintain their current demographic makeup by excluding Palestinian Arab citizens, an act of discrimination on the basis of their race, ethnicity, and national origin.

One of the law's sponsors, David Rotem of the Yisrael Beiteinu (Israel Our Home) party, told the Knesset in December 2009 that such a law would allow towns to be "established by people who want to live with other Jews." In a radio interview that month, Rotem said the law would codify screening procedures so that Jewish Israelis could "establish a place where everybody is an army veteran, a Yeshiva alumni, or something of that sort."

Another sponsor, Yisrael Hasson of the Kadima party, said in December 2010 that "the bill reflects the Knesset's commitment to work to preserve the ability to realize the Zionist dream in practice in the state of Israel" through "population dispersal," which the government had begun "thirty years ago ... [with] a string of small communities in the Galilee and Negev."

"Realization of these goals obliged us as legislators to ensure the existence of a screening mechanism for applicants to these communities," he said.

Late in negotiations over the law, legislators added a clause that nominally forbids committees to discriminate on the basis of race, religion, gender, nationality, or disability. However, the law's exclusion criteria threaten to do exactly what is supposedly prohibited, allowing admissions committees to mask discrimination under the vague criteria that a candidate is "unsuitable" to the community's "social characteristics," Human Rights Watch said.

Israeli opponents of the law argued that it would effectively bolster the legal and political standing of admissions committees and allow them to bypass a previous Supreme Court ruling against discrimination in property rights. In the case that led to that ruling, a village rejected an Arab-Israeli couple because the village was established on land that Israel had leased to the Jewish Agency, which did not lease land to non-Jews. Most of the land in Israel is state-owned and leased for 49- or 98-year periods.

The couple petitioned the Supreme Court, which ruled in 2000 that allocating land to citizens solely on the basis of their religion constituted prohibited discrimination, including cases in which the state first leased land to third parties that would not then lease it to non-Jews. However, the court limited the ruling to the specific case and stated that it might not make the same ruling in unspecified "special circumstances." The village committee then rejected the couple because they "did not fit its character." After further legal action, the couple was able to lease the land in 2007.

The law states that each community's unique "characteristics" will be "codified," and that rejected candidates are entitled to an explanation. However, in a February 2011 Supreme Court hearing regarding two couples whom admission committees rejected, the petitioners argued that many small rural communities are not designed exclusively for particular social groups with unique ways of life, such as ultra-Orthodox religious communities. The chief justice stated that the town in question "does not have any unique characteristics," and called the screening process an "invasion of privacy." But the court has yet rule in this case.

In a petition to the Supreme Court against the new law that has yet to be ruled on, the Association for Civil Rights in Israel, a nongovernmental group, cited court cases brought by Palestinian Arabs and other families whom village acceptance committees rejected because they did not "socially fit." In one case, a kibbutz justified its rejection of an Arab-Israeli couple because its admissions criteria required residents to be eligible for membership in the World Zionist Organization and to have served in the Israeli army. Few Palestinian Arab citizens of Israel perform military service.

Another village committee requires applicants to embrace the values in the village's charter, including "Zionism" and "Jewish tradition." Other communities rejected Jews of North African and Middle Eastern descent and a disabled veteran. In these cases, the parties compromised or the court ordered the committees to re-evaluate the application, with the result that the courts have not explicitly ruled the committees' actions to be discriminatory.

In an affidavit submitted by the civil rights group, the former chairperson of one acceptance committee stated that the committee often rejected applicants on the basis of committee members' personal preferences, and that in most cases the evaluation process merely rubber stamps a decision to reject applicants.

As originally drafted, the law would have applied to communities across Israel, but after a compromise, the final law, which passed after 2 a.m. on March 23 by 35 to 20, applies only to the Negev and Galilee regions. Longstanding Israeli policy seeks to "Judaize the Galilee," and Israeli officials have promoted plans to encourage large-scale Jewish immigration to the Negev. In 2010, several rabbis in the Galilee, who are government officials, campaigned for Jewish Israelis not to rent apartments or sell land to Arab-Israelis; and the Knesset gave preliminary approval to a parliamentary inquiry into alleged purchases of Israeli land by "foreign governments" for the benefit of Arab-Israeli citizens. Arab citizens of Israel have sought to move into Jewish communities in part because of a lack of housing for Palestinian Arab citizens. While Israeli planning authorities have established hundreds of Jewish towns and villages, Israel has not allowed Arab citizens to establish any new towns since 1948, except for seven communities that the state planned for Bedouins from the Negev, whom the government urged to relocate from their traditional lands or forcibly evicted from them.

Since the 1990s state planning bodies have approved "expansions" for Jewish towns, rezoning adjacent agricultural lands for residential construction. An Israel Lands Authority administrative decision from 1993 granted local residents and their children "preferred access" to the newly expanded residential areas, and authorized the towns to create admissions committees to review outside applicants. By contrast, Human Rights Watch has documented cases in which Israeli planning authorities consistently rejected the petitions of Arab-Israelis to rezone "agricultural" lands for residential purposes.

In 2007 the United Nations committee that oversees states' compliance with the Convention on the Elimination of Racial Discrimination recommended that Israel examine the role of admissions committees, "ensure that state land is allocated without discrimination, direct or indirect," and "assess the significance and impact of the 'social suitability' criterion in this regard." Under the convention, Israel is obliged to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race or ethnic or national origin, to freedom of movement and residence, and to housing.

"Countries should seek to end the segregation and negative treatment of minority communities, yet Israel is moving in the other direction," Whitson said. "A state that deliberately promotes the residential rights and privileges of one ethnic group while diminishing those of another is practicing illegal discrimination, pure and simple."

The Knesset passed, 37 to 25, the law that allows the government to penalize any state-funded institution that commemorates the "Nakba," the Arabic term meaning "catastrophe" and referring to the historic episode in which hundreds of thousands of Palestinian residents of what is now Israel fled and hundreds of villages were destroyed during the conflict after Israel declared independence in 1948. The penalty could also be imposed on an institution that "denies the existence of the State of Israel as a Jewish and democratic state," an action the law does not define.

Palestinian Arab members of Israel's parliament, community leaders, and civil society groups have frequently stated their view that definitions of Israel as a "Jewish state" marginalize and exclude them.

The law, formally an amendment to the Budget Principles Law, enables the finance minister to cut government funding to such institutions by three times the amount that the institution spent on the "illegal" activities. The law does not distinguish cases in which institutions spent non-government funds on such activities. The finance minister would need the approval of other budgetary officials to cut the funds.

The law does not define "institution," but states that it applies to any state-funded entity. Entities at risk include not only municipalities, but also theaters and schools that stage plays or screen films about the Nakba or cultural organizations that hold "coexistence" activities for Jewish and Arab Israeli students to commemorate both Israel's independence day and the "Nakba" as a form of mutual learning.

"This effort to punish the peaceful expression of opinions by Israelis who receive state funding is an insult to Palestinian Arab citizens of Israel and a threat to freedom of expression," Whitson said. "Since when does the Israeli government have the right to tell Israeli citizens what they're not entitled to say about history?"

The Nakba law's threefold financial penalty threatens to harm the rights of citizens - for example, by cutting federal funds that municipalities need to provide health, housing, education, and other services, Human Rights Watch said. For example, according to an Organization for Economic Cooperation and Development report on Israel, local governments are responsible for providing basic social services but receive 75 percent financing from the central government to procure those services. The predictable result of the law's severe penalties and the vagueness of the acts and institutions that could be penalized is that it will broadly chill freedom of expression by preventing various institutions from commemorating the Nakba at all, Human Rights Watch said.

"The government is telling Arab-Israeli municipalities and other institutions that if they don't shut up about the Nakba and anything else that bureaucrats may deem anti-Israeli, they'll have to shut down programs and services for lack of funds," Whitson said. "Democracies shouldn't quash expression even if it's unpopular, and in this case, what's unpopular to some legislators is central to the historical narrative of a million and a half citizens."