Ethnic Democracy Revisited

Ethnic Democracy RevisitedOn the State of Democracy in the Jewish State

Yoav Peled and Doron Navot

Abstract The current state of the debate over Israeli democracy and the state of Israeli democracy itself are analyzed through the citizenship status of Israelrsquos Palestinian citizens The two main theoretical models featured in this debatemdashSmooharsquos ldquoethnic democracyrdquo and Yiftachelrsquos ldquoethnocracyrdquomdashare discussed focusing on the lsquoframework decisionsrsquo that inform their arguments After demonstrating that the question of Israeli democracy should be viewed dynamically and historically it will be clear that the Israeli state has been evolving from non-demo-cratic ethnocracy though ethnic democracy toward non-democratic majoritarianism For each one of these phases prior to October 2000 we analyze a seminal decision of the Supreme Court that highlighted the citizenship status of the Palestinian citizens during that phase For the period since October 2000 we analyze the Or Commission report and its reception by the government to argue that Israel may be on its way to becoming a non-democratic majoritarian state

Key words ethnic democracy ethnocracy Israel liberal democracy majoritarianism Palestinian citizens Supreme Court (Israel)

Jewish-Arab relations within Israel are the acid test of Israeli democracy

mdash Alan Dowty (1999 8)

In his influential essay ldquoThe Rise of Illiberal Democracyrdquo Fareed Zakaria made the point that in the postndashCold War world ldquodemocracy is flourishing liberalism is notrdquo (Zakaria 1997 23) Following Samuel Huntington Zakaria used a minimalist definition of democracy ldquoa country [that] holds competi-tive multiparty electionsrdquo (ibid 25) to make this point On the basis of this definition Zakaria concluded that there was no reason to consider democracy

Israel Studies Forum Volume 20 Issue 1 Summer 2005 3ndash27

4 | Yoav Peled and Doron Navot

as such a desirable regime or form of state since some of the most morally repugnant governments have been based on majority rule Liberal autocracy Zakaria suggested may be superior to illiberal democracy as a form of govern-ment (ibid 29)1

To the credit of Israeli social scientists some of them had noted long before Zakariarsquos essay that Israeli democracy fell short of the ideal of liberal democ-racy and was therefore a problematic form of state The first Israeli social scientist to make the distinction between what he called ldquosubstantiverdquo (ie lib-eral) and ldquoformalrdquo (ie procedural) democracy was Yonathan Shapiro (1977 191ndash194) In the tradition of Max Weber and C Wright Mills his argument was based on an analysis of the Zionist Labor Movement as an organization of power operating in the service of a political elite Shapiro did not pay particu-lar attention to the status of Israelrsquos Palestinian citizens in his analysis but that question has occupied the center stage of the debate over Israeli democracy since the publication of Sammy Smooharsquos (1990) seminal article ldquoMinority Status in an Ethnic Democracy The Status of the Arab Minority in Israelrdquo

Smooha relied on a somewhat less minimalist definition of democracy than Zakariarsquos in order to argue that what he called ldquoethnic democracyrdquo still qualified as a democracy albeit of an inferior kind The model of ethnic democracy (to be elaborated below) was adopted with some modifications by Peled (1992) and Gavison (1998) while Sarsquodi (2002) and Peleg (2004a) preferred ldquoilliberal democracyrdquo The model was criticized among others by Yiftachel (2000 forth-coming) who claimed that Israel should be called an ldquoethnocracyrdquo because it is ruled by a Jewish lsquoethnosrsquo rather than by an Israeli lsquodemosrsquo and by Navot (2002) who argued that Israel is not a democratic state but merely a ldquomajoritarianrdquo one because of the structural tyranny practiced by the Jewish majority2

In this essay we wish to consider both the current state of the debate over Israeli democracy and the state of Israeli democracy itself through the lens of the citizenship status of Israelrsquos Palestinian citizens For that purpose we will analyze the two main positions in this debatemdashSmooharsquos and Yiftachelrsquosmdashfocusing on the ldquoframework decisionsrdquo (Kimmerling 1992) that inform their arguments including their definitions of democracy After assessing the mer-its of each position we will argue on the basis of our own set of framework decisions that the question of Israelrsquos democracy should be viewed dynami-cally and historically and that the Israeli state has been evolving from a state resembling non-democratic ethnocracy through ethnic democracy toward non-democratic majoritarianism

Framework Decisions

A number of theoretical and methodological decisions have to be made before one can approach the question of Israeli democracy (or any other issue of social inquiry for that matter)

Ethnic Democracy Revisited | 5

1 Unit of analysis Is the proper territorial-political unit to be analyzed the sovereign State of Israel that is Israel within its pre-1967 borders (with the possible addition of East Jerusalem and the Golan Heights) or is it Israelrsquos lsquocontrol systemrsquo which includes the occupied territories in addi-tion to the State of Israel (Kimmerling 1989)3

2 Level of analysis Should the analysis focus only on the formal-legal aspect of Israelrsquos political life or should actual practices be considered as well and if so which ones

3 Definition of democracy How substantive or lsquothickrsquo as opposed to for-mal or lsquothinrsquo should our definition of democracy be Should the norma-tive aspect of that definition be seen as resting on fundamental values or should it derive from the practices of countries conventionally consid-ered to be democratic Should the distinction between democracy and non-democracy be treated as a dichotomy or as a continuum4 What-ever the answers to these questions is the proper subject of analysis the society the state the regime or the political order however each one of these concepts is defined

4 Periodization Should Israeli history from 1948 to the present be broken down into different periods If so what are those periods

The answers given to these questions we argue determine by and large the position taken by each scholar on the issue of Israeli democracy

Ethnic Democracy

According to Smooha ethnic democracy is a distinct type of democracy to be distinguished from liberal multi-cultural consociational and Herrenvolk democracies The criterion Smooha uses for distinguishing between these different types of democracy is the constitutional relationship between the dominant or core ethnic group the state and the minority group In ethnic democracy ldquothe ethnic nation not the citizenry shapes the symbols laws and policies of the state for the benefit of the majority This ideology makes a crucial distinction between members and non-members of the ethnic nationrdquo (2002 477) Smooharsquos unit of analysis is the state5 both in the sense of the State of Israel within its pre-1967 borders and in the sense of the institutional com-plex charged with maintaining and reproducing the social order

In liberal democracy Smooha argues the state should be officially neutral with respect to the ethnic (and other ascriptive) identity of its citizens so that members of all ethnic groups enjoy the same citizenship rights The national-ism officially espoused by the state in liberal democracy is civic nationalism unencumbered by association with any specific ethnic identity6

In consociational democracy ethnic or conceivably other kinds of groups are constitutionally recognized and accorded official status in the areas of


political representation culture and education budgetary allocations public service appointments and so on (Lijphart 1968) The state while not oblivious to the ethnic identity of its citizens is neutral with regard to the various ethnic groups and treats all of them equally While individual rights are respected in consociational democracies individuals are incorporated in the society through the ethnic groups they belong to thus all persons must be officially inscribed in one ethnic group or another Their collective identity is presum-ably a dual one made up of both the ethnic identity of their group and the civic national identity of the state (cf Bishara 1995 Peleg 2004a 427ndash428)

Smooha concludes that Israel while broadly considered a democracy cannot be fitted into any of these types of democracy As the constitution-ally defined ldquostate of the Jewish peoplerdquo which nonetheless has a substan-tial (about 15 percent) non-Jewish citizen-Palestinian minority Israel is not neutral with respect to the ethnicreligious identity of its citizens Rather it is what Rogers Brubaker (1996) has called a ldquonationalizing staterdquo and what Ilan Peleg (2004b) has described as an ldquoethnic constitutional orderrdquo in that it actively and openly fosters the interests of those it defines as Jews The nation-alism of the Israeli state is not lsquoIsraeli nationalismrsquo (an inconceivable idea for most Israelis) but Zionism that is Jewish nationalism Israel is clearly not a liberal democracy then and therefore cannot by definition be a multi-cul-tural democracy either

While Israelrsquos Palestinian citizens have separate institutions in the spheres of education culture mass media and religion most of these institutions are not autonomous but are under the control of the state Nor are Jews and Palestinians treated equally as collectivities Thus Smooha reasons Israel can-not qualify as a consociational democracy either At the same time within its pre-1967 borders Israel is not a Herrenvolk democracy for ldquoin herrenvolk democracies democracy is limited to the master lsquoracersquo and forcibly denied to other groupsrdquo (1990 390) The Israeli case requires then that a new class of democracy be defined

This new category ldquoethnic democracyrdquo of which Israel is the archetypal example is a democracy Smooha argues because it meets the minimal pro-cedural definition of democracy and respects the liberal individual rights of its citizens Ethnic democracy is however ldquodiminished by the lack of equal-ity of rights Non-members of the ethnic nation enjoy rights that are in some way inferior to the rights of the members and endure discrimination by the state Rule of law and quality of democracy are reduced by state measures intended to avert the perceived threat attributed to non-membersrdquo (2002 478) At the same time ethnic democracy may accord some collective rights to subordinate ethnic groups and in this way may come closer to meeting the demands of multi-culturalism than does liberal democracy It is for this reason Smooha states that at least at one time Israelrsquos Palestinian citizens preferred an ldquoimproved ethnic democracyrdquo over liberal democracy by a ratio of 70 to 30 (1998 35)


According to Smooha Israelrsquos ethnic democracy has been sustained by the confluence of two constitutional principles liberal democracy and Jewish ethno-nationalism Peled contends however that these two principles could not co-exist without the mediation of a third principle or citizenship dis-coursemdashthe republican one While the liberal discourse mandates the equal treatment of all citizens and the ethno-national one a privileged status for Jews the republican discourse dictates that rights and privileges be accorded in relation to contribution to the common good of society In the Israeli case that common good as defined by the state is the fulfillment of Zionism In this way the Palestinian citizensrsquo less than equal status is justified not by their different identity but by their non-contribution (or even negative contribu-tion) to the common good (Peled 1992) As a result Palestinian citizens enjoy diminished and inferior individual rights are excluded from membership in the core republican community and are denied collective rights Moreover their exclusion from the core political community redounds to their individ-ual rights as well since these rights especially their property rights in land are trumped by the collective interests of the dominant Jewish majority Still as we argue below for a certain period in Israelrsquos history when Palestinian citizens had a wide enough political space in which to work for the enhance-ment of their citizenship ethnic democracy was an apt characterization of the Israeli political order

Ethnocracy

Oren Yiftachel uses a lsquothickerrsquo definition of democracy than Smooharsquos in order to argue that Israel should not be characterized as a democracy at all His definition of democracy has several elements equal and inclusive citizenship civil rights protection of minorities and periodic universal and free elec-tions (Yiftachel forthcoming 107 see also Ghanem Rouhana and Yiftachel 1998 255) He persuasively asserts that ldquodespite the complex understanding of democracy we must acknowledge that below a certain level and with struc-tural and repeated deviations from basic democratic principles hellip lsquodemocracyrsquo is no longer a credible classificationrdquo (Yiftachel forthcoming 108)

Yiftachelrsquos territorial unit of analysis is the Israeli lsquocontrol systemrsquo He argues that ldquolsquoIsrael properrsquo hellip simply does not exit since it is impossible to define lsquoIsraelrsquo as a spatial unit and it is difficult to define the boundaries of its body-politic hellip Israel operates as a polity without borders This undermines a basic requirement of democracymdashthe existence of a lsquodemosrsquordquo (Yiftachel forthcom-ing 111ndash113 Ghanem Rouhana and Yiftachel 1998 260ndash264) Yiftachel also emphasizes ldquothe dynamics of Israelrsquos political geography which have caused the state to radically change its demography alter patterns of ethnic territorial con-trol rupture state borders incorporate Jewish and block Palestinian diasporas and form strong links between religion territory and ethnicityrdquo (forthcoming


114) He concludes that it is the Jewish ethnos not the Israeli demos that rules the Jewish state which therefore should be defined as an ethnocracy rather than a democracy

While we concur with Yiftachelrsquos thicker definition of democracy we believe that his rejection of the distinction between the sovereign State of Israel and the Israeli lsquocontrol systemrsquo renders the debate about Israelrsquos democratic charac-ter superfluous The lsquocontrol systemrsquo with 40 percent of its residents not enjoy-ing any citizenship rights at all is clearly not a democracy and rarely has any serious scholar argued differently While Jews still maintain a slight majority within the lsquocontrol systemrsquo the fact that all Jews enjoy full citizenship rights while the vast majority of Palestinians do not qualifies this as a Herrenvolk democracy (which of course is no democracy at all) The debate over democ-racy is meaningful only in regard to Israel within its pre-1967 borders

Contrary to Yiftachelrsquos thesis Israel within its pre-1967 borders is a well-defined entity in Israeli law (even if that definition has faded considerably in actual government practice and in the political consciousness of many Israeli Jews) The Israeli state holds the West Bank and Gaza under belligerent occu-pation with no claim of legitimacy from their Palestinian residents but that does not necessarily impinge the democratic character of the state itself As Robert Dahl has noted states can be ldquodemocratic with respect to [their] own demos but not necessarily with respect to all persons subject to the collective decisions of the demosrdquo (1989 32ndash33 cited in Maletz 2002 743)

Is pre-1967 Israel a democracy or an ethnocracy then Since there is little dispute about the facts we will not elaborate the different kinds of rights that Israelrsquos Palestinian citizens enjoy or donrsquot enjoy in theory and in practice as we attempt to answer this question We will focus rather on two issues beyond the basic procedural requirements which we deem crucial for the existence of democracy the actual exercise of citizenship rights by the minority and the ability of the minority to effect positive change in its citizenship status within the framework of the law (cf Smooha 2002 481)

From Ethnocracy to Majoritarianism

For the reasons mentioned above we take the State of Israel within its pre-1967 borders as our geographic-demographic-political unit of analysis Within that unit we focus on the political order by which we mean all social interactions that involve the institutional application of social power actually or potentially We understand the term lsquopolitical orderrsquo to be more inclusive than the term lsquostatersquo which would help us avoid definitional arguments about whether the Histadrut or the Jewish Agency for example should be considered state organs or not In our definition they are definitely included within the political order

We focus our analysis on the citizenship status of Israelrsquos Palestinian citizens in the most comprehensive sense of the term In this view lsquocitizenshiprsquo involves


both formal legal arrangements and the actual way in which a particular social group is incorporated into the society by the political order For a political order to be called democratic it must include several features majority rule political equality respect for human and civil rights and the absence of legal constraints on agenda setting except as necessary to prevent serious harm to democracy itself Although the presence of these features is a matter of degree the distinction between democracy and other types of political order such as states or regimes should be treated as dichotomous To paraphrase Sartorirsquos argument what makes a state or a political order democratic at all should not be mixed up with what makes it more or less democratic7

In terms of its democratic character as reflected in the citizenship of its Palestinian citizens we see the history of the State of Israel as divided into four periods

1 1948ndash1966 The period of the Military Administration when the politi-cal order could indeed be characterized as ethnocratic rather than dem-ocratic

2 1966ndash1992 Ethnic democracy3 1992ndash2000 Liberalization efforts4 2000ndashpresent Setback and possible transition to a majoritarian politi-

cal order

In analyzing each period we will focus on a seminal judicial decision (and in one case on a report of a state commission of inquiry a semi-judicial body) that we argue clearly reveals the essential character of that period Although we do not wish to evaluate the Israeli political order in terms of its formal-legal aspects alone we will focus on these seminal decisions because they highlight the citizenship status of the Palestinian citizens in each period the Yardor decision of 1965 the Neiman decision of 1984 the Qaadan decision of 2000 and the Or Commission report of 2003

1948ndash1966 Ethnocracy

In the period of the Military Administration Israelrsquos Palestinian citizens were formally granted equal individual rights but in practice most of these rights were suspended The exercise of the one right that was not suspended the right to vote was tightly controlled by the military so that election returns among the Palestinian citizens were overwhelmingly favorable to the ruling party Mapai8

The most revealing example of the denial of the Palestiniansrsquo political rights by Israelrsquos highest legal authority was the case of the al-Ard group and the Arab Socialist List the list of candidates al-Ard sponsored for the 1965 general elec-tions Al-Ard was a small group of citizen-Palestinian intellectuals who sought to promote a Nasserist political agenda and reconstitute Israel as a secular democratic state of its citizens through lawful political means (Haris 2001


134 Jiryis 1976 187ndash196) In 1960 six members of the group were convicted in court for publishing a newspaper without a license9 In the same year the registrar of firms refused to register al-Ard as a firm for national security considerations The High Court of Justice overruled his decision emphasizing that the absolute discretion that the law granted the registrar did not include the authority to consider matters of national security10 But two years later the High Court approved the decision by the district supervisor of the Haifa district (an Interior Ministry official) to refuse to register al-Ard as a not-for-profit corporation for fear that the corporation would seek to undermine the regime11 In 1964 al-Ard was declared an illegal association by the minis-ter of defense In 1965 the Central Elections Commission (CEC) headed by Supreme Court Justice Moshe Landau disqualified al-Ardrsquos Arab Socialist List from participating in the elections for the Sixth Knesset on the grounds that it was ldquoan unlawful association because its promoters deny the [territorial] integrity of the state of Israel and its very existencerdquo (Kretzmer 1990 24)

This ruling had no basis in law Until 1985 the CEC did not have the author-ity to disqualify candidate lists on the basis of their platform or the ideology of their members or ldquopromotersrdquo Nevertheless in its Yardor decision the Supreme Court upheld by a 2 to 1 majority the CECrsquos ruling Invoking the doctrine of ldquodefensive democracyrdquo the Court majority argued that al-Ardrsquos objection to the Jewish character of the State of Israel which was tantamount in the Courtrsquos eyes to objecting to its very existence justified the departure from the strict letter of the lawmdashthis despite the fact that al-Ard sought to bring about the change in the character of the state through lawful means only In the words of the one dissenting justice Haim Cohn which were not dis-puted by his colleagues ldquo[I]n the material which was in front of the CEC and which was presented to us too there was nothing to justify let alone mandate the finding that there is a real or clear or present dangerrdquo posed to the state or to any of its institutions by the Arab Socialist List (Yardor 1965 365 see also Cohn 1989 185ndash186)

1966ndash1992 Ethnic Democracy

Under the mantle of the Military Administration a major drive to lsquoJudaizersquo the spacemdasha hallmark of ethnocracymdashwas undertaken involving massive expro-priation of Palestinian-owned land This Judaization effort belied the claim that the Palestinian citizens enjoyed in practice the most fundamental individual liberal rightmdashthe right to own property According to Ian Lustick ldquo[T]he mass expropriation of Arab land has been the heaviest single blow which government policy has dealt to the economic integrity of the Arab sectorrdquo (1980 182 for details see Shafir and Peled 2002 112ndash114) No wonder then that as soon as the Military Administration was lifted and freedom of association became to a degree operative for Palestinian citizens one of the first political endeavors they launched was the struggle against land expropriation


In 1975 the Israeli Communist Party established the National Committee for the Defense of Arab Lands which declared 30 March 1976 to be Land Day marked by a general strike and demonstrations against the expropriation of land The government then headed by Yitzhak Rabin responded with force and imposed a curfew on a number of villages in central Galilee where land was about to be expropriated In skirmishes that ensued between security forces and demonstrators who defied the curfew six Palestinians were killed in three villages many more were wounded and hundreds were arrested (Lustick 1980 246 Sarsquodi 1996 404) Since Land Day however large-scale expropria-tions of Palestinian-owned land have subsided except in the Negev although the lsquoJudaizationrsquo of the space has continued in more subtle forms

A number of representative national Palestinian organizations were formed at the beginning of this period but following the experience of al-Ard no independent Palestinian political party had attempted to field a list of can-didates in Knesset elections until 1984 (In 1980 a public meeting called by Palestinian organizations to discuss the possibility of forming a unified Pal-estinian political party had been banned by the government [Smooha 1997 217]) Instead Palestinian voters had been shifting their votes from Mapai and the Labor Party and their Palestinian affiliates to the Communist Party whose following has become overwhelmingly Palestinian The party gained about 50 percent of the Palestinian vote in 1977 and 1981 but its share of the vote has been declining since 1984 as new Palestinian parties avowedly nationalist andor Muslim have been sprouting up

The first of these new parties the Progressive List for Peace (PLP formally a joint Palestinian-Jewish party) headed by a former member of al-Ard was established in 1984 The party platform called inter alia for turning the State of Israel into a liberal democracy in which all citizens would be treated equally before the law The CEC disqualified the PLPrsquos list of Knesset candidates on the grounds that the party ldquobelieves in principles that endanger the [territo-rial] integrity and existence of the State of Israel and [the] preservation of its distinctiveness as a Jewish staterdquo (Neiman 1984 225 Kretzmer 1990 27 Peled 1992 437) The Supreme Court however in a clear reversal of Yardor dis-guised as its affirmation reinstated the PLP on the grounds that no sufficient evidence was found to support the claim that it was negating the existence of the state David Kretzmer concluded correctly in our view ldquoWhat of a list that explicitly wishes to repeal the Law of Return but is sincerely committed to achieving this by the legislative process alone hellip Neiman I hellip would seem to imply that such a list hellip may not be disqualified under the Yardor precedentrdquo (Kretzmer 1990 27 Peled 1992 437ndash438)

To rectify this situation a number of the justices in the 1984 Neiman case recommended that the Knesset enact legislation that would give the CEC the authority to disqualify candidate lists for purely ideological reasons The Knesset complied in 1985 in the form of an amendment to Basic Law The Knesset which reads


A list of candidates shall not participate in elections to the Knesset if its goals explicitly or implicitly or its actions include one of the following

(1) Negation of the existence of the State of Israel as the state of the Jewish people(2) Negation of the democratic character of the State(3) Incitement of racism (Knesset 1985 3951)

The immediate target of articles 2 and 3 was Rabbi Meir Kahanersquos Kach Party an extreme right-wing Jewish party that called for the lsquotransferrsquo of all Palestin-ians citizens and non-citizens alike out of the Land of Israel Kach which like the PLP had been disqualified by the CEC in 1984 was also reinstated by the Court on the grounds that the CEC did not have the authority to act on the basis of ideology After a series of administrative and legal maneuvers Kach was indeed disqualified in the next general elections in 1988 but the PLP was not (Peled 1992) So far only right-wing Jewish parties have been effectively disqualified on the basis of this amendment

However in the deliberations leading to the Courtrsquos decision not to dis-qualify the PLP in 1988 (Neiman 1988 not discussed in this essay) it became clear according to Kretzmer that participation in Knesset elections could now be legally denied to a list of candidates ldquothat rejects the particularistic defini-tion of Israel as the state of the Jewish people even if the list is committed to achieving a change in this constitutional fundamental through the parliamen-tary process alonerdquo Moreover in Kretzmerrsquos view the decision also implied that ldquoon the decidedly fundamental level of identification and belonging there cannot be total equality between Arab and Jew in Israel The state is the state of the Jews both those presently resident in the country as well as those resident abroad Even if the Arabs have equal rights on all other levels the implication is abundantly clear Israel is not their staterdquo (1990 31 original emphasis) This view was shared by Smooha ldquoFrom the Israeli-Arabsrsquo viewpoint the provision that Israel is the land of Jews all over the world but not necessarily of its citi-zens degrades them to a status of invisible outsiders as if Israel were not their own staterdquo (1990 402)

1992ndash2000 Liberalization

Rabinrsquos return to the helm of the government in 1992 marked the beginning of the most consistently liberal era of Israeli history Economic liberalization which had begun in earnest in 1985 was greatly accelerated with the coup de gracircce dealt the Histadrut in 1994 in the form of the nationalization of its health care system through the State Health Insurance Law The Oslo Accords signed in 1993 inaugurated a period of peacemaking liberal social and politi-cal reform and great economic prosperity Rabinrsquos coalition government which had to rely on the support of six Members of Knesset (MKs) belonging to Palestinian political parties for its survival pursued the least discriminatory policy toward the citizen Palestinians that Israel has ever known


While counter-tendencies to Rabinrsquos liberal policies were operating as well in 2000 the Supreme Court took the most significant step ever toward making Israel a liberal democracy the Qaadan decision (HCJ 669895 Qaadan vs ILA Katzir and Others reprinted in Mautner 2000 427ndash448 for the history of the case see Ziv and Shamir 2000) The Qaadans a citizen-Palestinian cou-ple petitioned the Court in 1995 to intercede on their behalf with the Israel Land Authority (which manages 93 percent of the land in Israel) and five other governmental and quasi-governmental bodies that had refused to lease them land in Katzir a lsquocommunity settlementrsquo being established by the Jewish Agency in the lsquoTrianglersquo area not far from the Green Line In a path-breaking decision President of the Supreme Court Aharon Barak determined that it was illegal for the state to discriminate between its Jewish and Arab citizens in the allocation of land even when that discrimination was effected indirectly through non-governmental ldquonational institutionsrdquo (the Jewish Agency in this case) The ethno-national Zionist interest in ldquoJudaizingrdquo various regions of the country Barak ruled could not overcome the liberal principle of equality (Shafir and Peled 2002 132)

Furthermore to counter the argument that the equality principle was com-patible with a lsquoseparate but equalrsquo allocation of land Barak asserted that ldquoa policy of lsquoseparate but equalrsquo is by its very nature unequal hellip [because] separa-tion denigrates the excluded minority group sharpens the difference between it and the others and embeds feelings of social inferiorityrdquo (HCJ 669895 par 30) Significantly Barak based this assertion on the US Supreme Courtrsquos deci-sion in Brown vs Board of Education and determined that ldquoany differential treatment on the basis of religion or nationality is suspect and prima facie discriminatoryrdquo (Kedar 2000 6)

Predictably the Court wished to protect itself against the allegation that its decision undermined Israelrsquos character as the state of the Jewish people For as many commentators were quick to point out if the state cannot give preference to Jews in the allocation of land what was the practical import of its being a Jewish state (Steinberg 2000) In anticipation of this argument Barak repeated his long-held position that the Jewish values of the state were not in contradiction with its liberal-democratic values and that the equality principle was rooted equally in both sets of values He also stressed that the decision applied in the particular case before the Court only and that its implications were future-oriented and should not be seen as raising any question about past practices Moreover in certain cases he conceded discrimination on the basis of national affiliation could be warranted so the Court did not decree that the state lease the Qaadans the property in ques-tion only that it reconsider its previous decision not to lease it to them12 Yet with all of these qualifications Barak was cognizant of the fact that the Qaadan decision was ldquoa first step in a difficult and sensitive roadrdquo (HCJ 669895 par 37 Shafir and Peled 2002 133)


2000ndashPresent Toward a Majoritarian State

For Israelrsquos Palestinian citizens the outbreak of al-Aqsa Intifada in October 2000 came after a period of increasing frustration with Israeli governmental policies The assassination of Yitzhak Rabin in November 1995 was a serious blow to their hopes for peace between Israel and the Palestinians and for more equal citizenship within Israel itself Despite that they were largely excluded from the rituals of national mourning and remembrance that followed the assassination (Al-Haj 2000)

On the eve of the 1996 elections Rabinrsquos successor from within the Labor Party Shimon Peres decided to launch a military operation in Lebanon Dur-ing that operation named by Israel ldquoGrapes of Wrathrdquo one hundred Lebanese civilians were killed in one village by Israeli artillery bombardment Neverthe-less in the elections for prime minister held in the following month 95 percent of those Palestinian voters who cast valid ballots voted for Peres compared to 44 percent of Jewish voters (Ozacky-Lazar and Ghanem 1996)

Peresrsquos loss to Benjamin Netanyahu in 1996 inaugurated a period of alien-ation between the government and its Palestinian citizens Not only was the peace process stalled but friction was renewed around the issues of budgetary allocations land expropriation and demolition of houses (Smooha 2002 493) This alienation broke out in violent clashes with police in the Palestinian town of Um-al-Fahem in September 1998 during which police for the first time fired rubber-coated steel bullets at Israeli demonstrators resulting in a number of serious injuries (Or Commission 2003 83ndash85 Yiftachel 2000 78)

In the next election for prime minister in 1999 again 95 percent of the Palestinian voters voted for the Labor Party candidate Ehud Barak although he had practically ignored them during the election campaign (Ghanem and Ozacky-Lazar 1999) Barakrsquos snubbing of the citizen Palestinians continued after his election victory and was expressed both in his unwillingness to con-sider including their representatives in the government coalition in any form and in the policies pursued by his government after it was formed

When the al-Aqsa Intifada erupted demonstrations of solidarity by citi-zen Palestinians assumed a more violent character than before resulting in a number of major highways being temporarily blocked (for an analysis of the broader context of this reaction see Navot 2002 Or Commission 2003 25ndash169 Rabinowitz Ghanem and Yiftachel 2000) Although the police and the demonstrators recall different versions of the events that ensued it is clear that the demonstrators were unarmed and it is unlikely that any lives were endangered prior to the intervention of the police Still throughout the north-ern police district where the majority of citizen Palestinians live (and only in that district) the police fired rubber-coated steel bullets and live ammunition at the protestors killing thirteen of them (twelve Palestinian citizens and one non-citizen Palestinian one Jewish citizen was killed by Palestinian protes-tors) and wounding many more13 In some areas Jewish demonstrators also


attacked Palestinians resulting in major property losses injuries and perhaps even deaths Furthermore the Jewish majority reacted to these events by insti-tuting an unofficial economic boycott of the citizen Palestinians a boycott that continues to this day and that has resulted in a 50 percent decline in the volume of Palestinian business within Israel

The death toll in this series of confrontations which lasted almost two weeks was the heaviest since the Kafr Kassem massacre of 1956 when forty-nine villagers were murdered by police for breaking a curfew of which they were unaware (Benziman and Mansour 1992 106 Rosental 2000) Still it took six weeks of strong pressure from the Palestinian political leadership and from some Jewish public figures for the government to appoint a state commission of inquiry headed by Supreme Court Justice Theodore Or to investigate the clashes

As noted the lsquoOctober Eventsrsquo were the culmination of a long period during which a political confrontation was brewing between the state and the Pales-tinian minority especially those political leaders of the minority who were most vocal in demanding fundamental changes in the nature of the state In response to these demands the looming danger of a Palestinian demographic preponderance was increasingly played up by Jewish politicians and academ-ics coupled with demands for limiting the citizen Palestiniansrsquo political rights prosecuting Palestinian MKs for challenging the Jewish character of the state and even lsquotransferringrsquo citizen Palestinians out of the territory of the State of Israel altogether A lsquosofterrsquo version of the transfer idea called for territorial exchange between Israel and the future Palestinian state in which in return for keeping the lsquosettlement blocksrsquo Israel would cede to the Palestinian state the Wadi Ara region a major concentration of citizen-Palestinian communities adjacent to the Green Line This idea is promoted by several mainstream poli-ticians and academics and is supported by about a third of the Jewish Israeli public (Navot 2002)14

The outbreak of al-Aqsa Intifada greatly accelerated this confrontation In June 2000 following Israelrsquos unilateral and hasty retreat from southern Leba-non and then again in June 2001 Azmi Bishara the most prominent secular citizen-Palestinian intellectual and politician praised the ability of Hezbollah to successfully exploit ldquothe enlarged sphere that Syria has continuously fos-tered between accepting Israeli dictates regarding a so-called comprehensive and enduring peace and the military option [of an all-out war]rdquo The latter occasion for this statement was a memorial service for the late Syrian presi-dent Hafiz al-Asad held in Syria as a consequence Bishara was indicted for violating the Prevention of Terrorism Ordinancemdash1948 (Sultany 2003 36) This also hastened the passage of legislation that might seriously hinder the freedom of speech of citizen Palestinians and the ability of their political par-ties to participate in future Knesset elections

In May 2002 the Knesset amended Basic Law The Knesset and the penal code as well as two more minor statutes The amendment to Basic Law The


Knesset added ldquosupport for the struggle of an enemy state or the armed struggle of a terrorist organization against the state of Israelrdquo to the grounds on which the CEC could disqualify a political party or an individual candidate from participating in Knesset elections Previously only denial of Israelrsquos character as a Jewish or as a democratic state and incitement of racism could serve as grounds for disqualification and the CEC could disqualify only electoral lists not individual candidates The amendment to the penal code made incite-ment of racism violence or terror a criminal offense (Sultany 2003 25ndash26 31) Since practically all citizen Palestinians support the Palestiniansrsquo struggle against the Israeli occupation of the West Bank and Gaza and since in the cur-rent political climate that struggle is defined by the state as a terrorist struggle (Benvenisti 2004) this opened the way for the wholesale disqualification of citizen-Palestinian political parties and the indictment of citizen-Palestinian leaders for violation of these two laws Indeed in 2003 the CEC disqualified two citizen-Palestinian candidates and one citizen-Palestinian political party from participating in the general elections All three were reinstated however by the Supreme Court and were elected to the Knesset

The attempt to restrict the scope of Palestinian citizenship was not limited to civil and political rights Palestiniansrsquo social rights came under attack as well An amendment to the National Insurance Law passed in June 2002 applied a 4 percent cut to all child allowance payments and an additional 20 percent cut in the amounts paid to parents of children without a relative who served in the Israeli military The vast majority of citizen Palestinians do not serve in the military and the amendment restored the discrimination that had existed until 1993 in the amount of child allowances paid to Jewish and to Pal-estinian citizens (Rouhana and Ghanem 1998 330) (While the discrimination was officially based on service in the military ways were always found to pay Jews who do not servemdashprimarily the ultra-Orthodoxmdashthe full amount) An appeal to the Supreme Court by several MKs and public advocacy organiza-tions has so far halted the implementation of this amendment

The most significant blow to the citizenship status of the citizen Palestin-ians came in July 2003 when the Knesset enacted the Nationality and Entry into Israel Law (Temporary Order) which prohibits the granting of residency or citizenship to Palestinians from the Occupied Territories who are married to Israeli citizens This law continued the main elements of an executive order that had already been in effect since May 2002 and created for the first time an explicit distinction in the citizenship rights of Jewish and Palestinian citizens (In the past distinctions of this kind have been based primarily on military service the Law of Return it has been argued discriminates between Jewish and non-Jewish would-be immigrants not between citizens) The duration of the law was to be for one year but in July 2004 it was extended for another six months A softer version is reportedly in preparation at the time of writing

Against this background the Or Commission published its report in Septem-ber 2003 The report we argue constituted a call for the restoration of ethnic


democracy which had been seriously undermined since October 2000 rather than an effort to encourage the state to return to the liberalizing course it had pursued between 1992 and 2000 The Commissionrsquos call for the restoration of ethnic democracy was expressed through a dual move On the one hand its report catalogued in great detail and with surprising forthrightness the history of discrimination against the citizen Palestinians particularly in the area where most of their grievances have been concentrated land ownership and use The report also severely criticized the behavior of the police and of the government as a whole during the lsquoOctober Eventsrsquo On the other hand however the Commission also accused the Palestinian citizens and especially their political and religious leaders of behaving improperly in airing their grievances although this accusation fell short of pointing to any unlawful activity by these leaders In other words while relating the continuous and incessant violation of the Palestiniansrsquo citizenship rights by the state the report demanded that they adhere to their obligation to protest this violation within the narrow confines of the law

The Commission determined that although discrimination on the basis of national religious or ethnic identity is strictly forbidden under Israeli law Israelrsquos ldquoArab citizens live in a reality in which they are discriminated against as Arabsrdquo (Or Commission 2003 33)15 The party guilty of discrimination was not some private entity but the state itself The Commission cited several official government documents admitting to this including a National Secu-rity Council report dated only two weeks before the lsquoOctober Eventsrsquo which proposed that Prime Minister Barak apologize for this ldquocontinuing discrimi-nationrdquo and undertake concrete measures to correct it (38) Naturally most (though by no means all) of the government documents cited by the Com-mission referred to the Palestinian citizensrsquo subjective feelings rather than to a reality of discrimination But the Commission stated very clearly ldquo[W]e believe these feelings had solid grounding in realityrdquo (41) It then proceeded to present how gross discrimination had been practiced in the areas of land possession and use treatment of the ldquopresent absenteesrdquo16 budgetary alloca-tions employment socio-economic conditions education religion language rights political participation police protection social status and social rela-tions and racist incitement Summing up its review of the ldquoprofoundrdquo causes for the lsquoOctober Eventsrsquo the Commission stated that ldquothe Arab community feels deprived in a number of areas In several areas the deprivation is a con-sequence among other things of discrimination practiced against the Arab community by government authoritiesrdquo (60)

The Commission alluded to the fact that because the state is defined as Jew-ish and democratic the citizen Palestinians feel that ldquoIsraeli democracy is not democratic towards the Arabs to the same extent that it is democratic towards the Jewsrdquo (28) It chose neither to confirm nor to challenge this perception however but to adhere to the view that legally speaking Israelrsquos Palestinian citizens enjoy full and equal individual citizenship rights just like its Jewish


citizens (29) The commission took this equalitymdashthat is Israelrsquos presumed character as a liberal democracymdashas a basic assumption and did not feel the need to argue that this was indeed the case In this way it could avoid a critical examination of the true nature of the Israeli state describing the real-life situ-ation of the Palestinian citizens as an aberration rather than a manifestation of Israeli democracy

State institutions primarily the police and individual government offi-cials from Prime Minister Barak down to low-ranking police officers on the line were harshly criticized by the Commission for their roles in the lsquoOctober Eventsrsquo The kind of criticism that is most relevant to our argument however is that in which the Commission is seen to be making an effort to maintain or re-establish the distinction between citizen and non-citizen Palestinians a distinction that is crucial to the existence of ethnic democracy (Peled 1992)

This effort is most obvious when the report discusses the primary means of crowd control used by the police in confrontations with protestors rubber-coated bullets These bullets are widely used by the Israeli military in the Occu-pied Territories as a supposedly non-lethal substitute for live ammunition After painstakingly studying the matter however the Commission concluded that rubber bullets are both deadly and highly inaccurate In other words they are not only extremely dangerous to the targeted individuals but also to inno-cent bystanders in their vicinity But the Commission did not find it necessary to criticize let alone prohibit the use of rubber bullets in general Rather it stressed that measures that may be allowed in dealing with non-citizen protes-tors in territories under belligerent occupation are not allowed in dealing with citizens inside the sovereign territory of the state (458ndash459)

Similarly the Commission invested a great deal of effort in investigating whether snipers commonly deployed in the Occupied Territories had ever before been utilized against unarmed demonstrators inside the State of Israel It concluded that their utilization during the lsquoOctober Eventsrsquo was unprec-edented and constituted a dangerous threshold in the relations between the state and its Palestinian citizens (475 495 497)

Two cabinet ministers Prime Minister Ehud Barak and Public Security Minister Shlomo Ben-Ami as well as higher-echelon police officers were criti-cized by the Commission for (among other things) failing to act decisively in order to end the killing of demonstrators especially after the first day of pro-test had resulted in three fatalities It was quite clear to the Commission as it is to any reader familiar with Israeli society that the cavalier attitude with which these higher officials treated the news of the fatalities stemmed solely from the fact that the deceased were Palestinians Moreover for some of the decision makers in the cabinet and in the top ranks of the police the events of the first day of protest meant that the Green Line separating citizen from non-citizen Palestinians had been erased (219 582)

The Commission also noted that even before the lsquoOctober Eventsrsquo the com-bination of aggressive behavior toward Palestinian protestors and the lack of


adequate police protection in Palestinian communities created an impression among the Palestinian citizens that the police viewed them as enemies of the state rather than its citizens The Commission agreed that such an attitude indeed prevailed among some members of the police force and that this atti-tude influenced their behavior during the lsquoOctober Eventsrsquo (90 768)

With this evidence of continuous structural discrimination in hand the Commission turned to analyze the lsquoradicalizationrsquo of the citizen-Palestinian community in the 1990s For the Commission ldquoradicalrdquo meant seeking to confront social-political problems at their roots (60) This ldquoradicalizationrdquo was manifested in a number of ways Firstly there was the demand with increasing urgency to end discrimination and to ameliorate the conditions that the Com-mission itself had characterized as incompatible with the equal citizenship that the Palestinian citizens are supposed to enjoy under Israeli law Beyond that the Commission mentioned the demand for making Israel a state of its citizens (ie a liberal democracy) a ldquodemand that apparently more than any other invoked suspicion and displeasure in the Jewish publicrdquo (including it seems the two Jewish members of the Commission itself) (63)

The other major indications of ldquoradicalizationrdquo mentioned by the Commis-sion were intensified political activism and rhetorical militancy of Arab politi-cians increasing identification with the (liberation) struggle of the Palestinians in the Occupied Territories and the rise of the Islamic Movement (60ndash80) The citizen Palestinians were not alone however in identifying with the non-citizen Palestinians in the Occupied Territories At that time at least Jewish Israelis in ever greater numbers came to empathize with their plight as well17 As for the Islamic Movement many of its demands were meant to correct gov-ernment policies that the Commission itself regarded as blatantly unjust if not illegal Thus at least some of the concerns voiced by the Israeli Islamists were found by the Commission to be ldquonot completely unfoundedrdquo (75)

Most significantly the Commission stressed that the process of ldquoradicaliza-tionrdquo did not include ldquocalls for civil rebellion [in the form] of boycotts and terror nor demands to [secede and] join the Palestinian state when one is establishedrdquo (64) In spite of this in moving from a narrative of structural dis-crimination and deprivation to the chapter that discusses ldquoradicalizationrdquo the Commission used a simple rhetorical device in order to sever the connection between the two It stated that the events of October 2000 must be seen ldquoalsordquo in the context of the processes of political escalation that had taken place among citizen Palestinians in the years leading up to 2000 (60) This ldquoalsordquo creates the impression that these processes of ldquoradicalizationrdquo were not a consequence of the history of discrimination and deprivation but rather a separate additional factor that combined with that history to produce the lsquoOctober Eventsrsquo

The disassociation of what it termed the ldquoprofound causesrdquo of the lsquoOctober Eventsrsquo from the events themselves is evident as well in the Or Commissionrsquos recommendations which mainly address fate of individuals and the reform of institutions rather than the restructuring of the discriminatory system itself


The main reason for this choice we contend was the Commissionrsquos commit-ment to ethnic democracy and its realization that a radical transformation of the citizen Palestiniansrsquo situation could be achieved only if they were truly integrated into the society This would have required that the state itself be transformed into a liberal democracy a transformation that would defy the most basic goal of Zionismmdashthe establishment of a Jewish state

Given its commitment to ethnic democracy the Commissionrsquos recom-mendations for improving the conditions of the Palestinian citizens occupy one page only and do not go beyond the solemn articulation of principles that should guide government policy toward the citizen Palestinians chief among them the principle of equality (766ndash768) This creates the impression that in the Commissionrsquos view the main problem of Israelrsquos Palestinian citizens is that the government has so far been ignorant of these principles Moreover the Commission balances its recommendations with an exhortation directed at the citizen Palestinians themselves calling upon them to internalize the rules of legitimate civil protest (769ndash770) Since the Commission does not offer the citizen Palestinians any advice on how to make their civil protest more effec-tive than it has been in the past this part of its recommendations sounds like pious preaching devoid of any substance

Two weeks after the Or Commission had submitted its report in Septem-ber 2003 the cabinet decided to accept its personal recommendations (most of which had been rendered irrelevant in the three years it took the Com-mission to write the report) and to establish an inter-ministerial committee headed by then Justice Minister Yosef Lapid to study its policy recommenda-tions In addition to Lapid the committee included three of the most extreme right-wing ministers in the cabinet and one moderately liberal minister The composition of the Lapid Committee caused the organizations representing Palestinian citizens to refuse to co-operate with it

The Lapid Committee submitted its report in June 2004 This report made clear that as could be expected the Or Commissionrsquos heroic effort to restore ethnic democracy had been in vain18 The report begins with the misleading assertion that the Or Commission had assigned equal responsibility for the lsquoOctober Eventsrsquo to the state and to the Palestinian citizens and their leadership The report also ignores the very clear statement of the Or Commission that the feelings of deprivation and discrimination among Palestinian citizens are well rooted in reality stating instead that ldquothe [Or] Commission held the view that it is not possible to ignore the fact that ever since the establishment of the state Arab citizens are gnawed by a feeling of deprivation and discriminationrdquo

The Lapid Committeersquos primary recommendation was that a new govern-ment authority be established with the goal of promoting the ldquonon-Jewish sectorsrdquo and of ensuring that government decisions regarding these sectors are implemented This is tantamount to a revival of the old office of the prime ministerrsquos adviser on Arab affairs a hallmark of discriminatory policy that was done away with in the period of liberalization The committee also


recommended that the idea of national service ldquofor citizens who are not called up for military servicerdquo be promoted and made the implementation of the Or Commissionrsquos cardinal (and unconditional) recommendationmdashequality between Jewish and Palestinian citizensmdashconditional on the establishment of such service

The committee also recommended drawing up a master plan for urban renewal in all of Israelrsquos Arab villages and towns but it refrained from relat-ing to the recommendation of the Or Commission (not to mention the High Courtrsquos Qaadan decision) regarding the principle of just allocation of land resources to the Palestinian citizens A master plan that fails to address the issue of land allocation would result in the perpetuation of the present dis-criminatory land policy of the state

The committee called upon the citizen-Palestinian leadership to refrain from incitement against the state and its institutions to denounce violence to beware of blurring the distinction between sympathy for the Palestinians in Judea Samaria and Gaza and disloyalty to the state to develop ldquocivil con-sciousnessrdquo among Arab citizens emphasizing the enforcement of local ordi-nances especially those that relate to planning and construction to encourage Arab youth to volunteer for national service and to contribute to the improve-ment of the atmosphere between Arabs and Jews by social educational and cultural cooperation ldquoJews and Arabs as one must take part in rehabilitating the relations between the sectorsrdquo the report stated

Regarding the police the committee concluded that they have internalized the findings of the Or Commission report and have implemented its vari-ous recommendations It also found that the police are better prepared today for events similar to those of October 2000 ignoring the fact that the police still suffer from the main problem they had in October 2000 racist attitudes and violent behavior toward non-Jews In sum while the Or Commission attempted to restore the ethnic-democratic character of the state the Lapid Committee was a reactionary response to it seeking to re-inforce the anti-democratization process that had begun in October 200019

Conclusion

Using a different set of lsquoframework decisionsrsquo from other participants in the debate over Israeli democracy we have developed in this article a dynamic and historical analysis of its evolution from a system resembling ethnocracy dur-ing the period of the Military Administration (1948ndash1966) through a period of ethnic democracy (1966ndash1992) and a brief spring of liberalization (1992ndash2000) to the current process of movement toward a majoritarian state

The key difference between the two models we have examined in this essaymdashethnic democracy and ethnocracymdashcan be found in their different normative motivations which have led them to focus on different units of analysis While


Smooha developed his model in order to explain why Israel proper should be regarded as a diminished sort of democratic state Yiftachelrsquos model was an attempt to show that there is no such thing as Israel proper or Israeli democracy The main problem with Smooharsquos model in our view was the decision to rely on a conventionalist definition of democracy This deprived him of the ability to make meaningful normative evaluations and created the impression wrongly in our estimation that he not only analyzed Israel as an ethnic democracy but supported its being so as well Still we believe Smooharsquos model of ethnic democracy did capture the true character of the Israeli state between 1966 and 2000 Yiftachelrsquos problem on the other hand was that the need to justify his unit of analysis led him to ignore the particu-lar legal status of the Occupied Territories in Israeli law He was also unable to explain the democratization and liberalization processes that took place in 1966ndash2000 and he would face a theoretical dead end should there be any withdrawal from the Occupied Territories in the future Still as we have argued at the time of the Military Administration Israel could indeed be characterized as an ethnocracy

The difference between these two models can be schematically summarized as having to do with their different views of the relations between three groups of people who live under the authority of the Israeli lsquocontrol systemrsquo Jewish cit-izens Palestinian citizens and Palestinian non-citizens The concept of ethnic democracy is based on the claim that there are two clear lines of demarcation between these three groups a line separating citizens from non-citizens and another line separating Jewish citizens from Palestinian citizens According to the ethnocratic model there is only one line which separates all Jews from all Palestinians As we have shown during the time of the Military Administra-tion when only two of these groups were present in the State of Israel the two groups were indeed separated by a clear line of demarcation Since the aboli-tion of the Military Administration and the conquests of 1967 which came at almost the same time the three groups separated by two lines posited by the ethnic democracy model have been in existence

As the Or Commission pointed out the lsquoOctober Eventsrsquo tarnished sig-nificantly the line separating the citizen Palestinians from the non-citizen Palestinians and thus undermined the democratic element in Israelrsquos ethnic democracy The Commission sought to restore ethnic democracy by re-inforc-ing that line of division while keeping intact the line separating Jewish citizens from Palestinian citizens This effort we have shown has been futile Further developments that followed the lsquoOctober Eventsrsquo and the publication of the Or Commission report including the conclusions of the Lapid Committee report which was meant to translate the Or Commission recommendations into policy have further tarnished the line separating citizen Palestinians from non-citizen Palestinians

At the present time four years after the lsquoOctober Eventsrsquo we believe that Israelrsquos political order is in a state of fluidity But it seems that the direction


of this fluidity is away from (ethnic) democracy and toward a majoritarian political order Israelrsquos Palestinian citizens still possess meaningful citizenship that distinguishes their status from that of their co-nationals in the Occupied Territories But following the lsquoOctober Eventsrsquo the various laws that have been enacted in their wake and the reception of the Or Commission report by the executive branch the political space available to Palestinian citizens for work-ing to enhance their citizenship has been considerably narrowed The narrow-ing of this political space has been achieved by majoritarian procedures and in this sense Israelrsquos procedural democracy has been maintained But the tyranny of the majority is a well-known concern in democratic theory When a major-ity group acts consistently to deprive the minority of the full and equal enjoy-ment of its citizenship rights and when the majority is not only a permanent one but also makes the maintenance of its own majority status the highest ideal of the state democracy has been emptied of its real content

The primary difference between the Israel of today and the one of a decade ago is that the Rabin government acted to enhance the citizenship of Israelrsquos Palestinian citizens and weaken the tyranny of the Jewish majority while the present Israeli political mainstream acts to re-inforce this tyranny and dimin-ish the citizenship rights of the Palestinian citizens To put it another way in the period 1992ndash2000 Israelrsquos ethnic democracy was evolving toward liberal democracy since 2000 it has been evolving toward a non-democratic majori-tarian political order

We do not wish to claim that Israel is already a majoritarian state only that it has launched itself on the dangerous road toward becoming one There is very little room now in the public discourse and in the political process for the concerns of the citizen-Palestinian minority In part this is a result of the violence inflicted on Israel during the al-Aqsa Intifada which has re-inforced the already existing tendency to treat the citizen Palestinians as Palestinians rather than as citizens Responding to this climate of opinion Palestinian citizens at both the elite and the grass-roots level have markedly lowered the volume of their political activity Even the months-long imprisonment of the entire leadership of one faction of the Islamic Movement prior to their convic-tion for minor technical violations of primarily financial regulations did not stir that Movementrsquos numerous followers in any serious way

We cannot end this essay on Israeli democracy without pointing out that as this is being written the Israeli state may be confronting the most serious domestic challenge it has ever had to face This challenge comes from the Jewish settlers in the Occupied Territoriesmdashan extremely privileged group within the Israeli lsquocontrol systemrsquomdasha significant number of whom have appar-ently decided to oppose by any means necessary Israelrsquos planned withdrawal from the Gaza Strip and part of the West Bank While the processes we have analyzed in this essay have all been evolutionary in nature this challenge to the authority of the state could lead to a revolutionary transformation of the political order in ways that cannot yet be envisioned


Notes

The authors would like to thank the editor Ilan Peleg and two anonymous referees for their very thoughtful comments and suggestions

1 The classic statement of the fact that democracy and liberalism are not necessarily compat-ible is Carl Schmittrsquos see Schmitt 1976 [1932]

2 Peleg sees Israel as the archetype of a majority hegemonic system According to him major-ity hegemonic regimes frequently give birth to illiberal democracy Peleg maintains that even though Israelrsquos democratic character is seriously and inherently flawed the overall structure of the polity is still democratic (Peleg 2004a 433 430 see also Peleg 2004b) For examples of writers who insist that Israel is a Western liberal democracy see Smooha (2002 494)

3 Ian Lustick (1980) referred to Israelrsquos relations with its Palestinian citizens as a control sys-tem Later on the eve of the liberalizing era of the 1990s he argued that Israel was moving toward becoming a binational ie consociational state (Lustick 1989 1990)

4 See Collier and Adcock (1999) 5 Sometimes Smooha uses other terms such as ldquoregimerdquo or ldquopolitical systemrdquo (see Smooha

2002 478) but the terminological differences have no conceptual meaning in his analysis 6 This universalistic state with the strong integrationist pressures associated with it has come

under a great deal of criticism in recent decades for denigrating minority cultures and serv-ing as a subtle vehicle for promoting assimilation into the majority (Kymlicka 1995) As a result several liberal democracies of which Canada is probably the most prominent exam-ple (Kymlicka 1998) have recently launched themselves on a course of development leading from liberal to multi-cultural democracy In the latter type of democracy group rights in addition to individual rights are recognized and respected in the spheres of political rep-resentation language policy education land ownership and use hunting rights and so on The relationship that should prevail between individual and group rights in multi-cultural democracies is still a thorny issue however both theoretically and practically (Peled and Brunner 2000)

7 Sratorirsquos original claim is that ldquowhat makes democracy possible should not be mixed up with what makes democracy more democraticrdquo (cited in Collier and Adcock 1999 548)

8 This did not prevent major democratic theorists who used a conventionalist definition of democracy from considering Israel a democracy in that period Thus Arendt Lijphart in 1984 and 1994 counted Israel among twenty-three countries ldquothat had been continuously democratic since the postndashWorld War II periodrdquo according to Robert Dahlrsquos definition of polyarchy (Dahl himself had also characterized Israel in this way) That definition included ldquofreedom to form and join organizationsrdquo and ldquothe right of political leaders to compete for support and votesrdquo (Dowty 1999 3ndash4) These two rights are indeed essential for a grouprsquos abil-ity to bring about change through lawful means Both of them however were clearly denied to Israelrsquos Palestinian citizens (that is to about 13 percent of the population) at that time

9 Cra 22860 Kahuji v Israel Attorney General PD 14 1929 10 HCJ 24160 Cardosh v Registrar of Firms PD 15 1151 11 HCJ 25364 Jyris v Supervisor of Haifa District PD 18 no 4 673 12 In 2004 the Qaadans were finally allowed to lease a plot in Katzir (wwwhaaretzcoil 10

May 2004) 13 It may be significant that the commanding officer of the northern police district Alik Ron

was previously chief of police in the West Bank 14 To put the demographic issue in perspective in 1948 citizen Palestinians comprised 125

percent of the population of Israel while today they comprise 15 percent They currently com-prise 10 percent of eligible voters in national elections and 9 percent of those actually casting ballots (not including the 2001 elections for prime minister which most of them boycotted)


15 Henceforward references to the Or Commission report will be by page number only 16 The term ldquopresent absenteesrdquo refers to internal Palestinian refugees who have been dis-

placed from their villages but continue to live in Israel as citizens 17 In March 1998 Ehud Barak who in July 1999 would be elected prime minister declared

that if he had been a young Palestinian he would have joined a terrorist organization (Mann 1998 11)

18 Justice Or who had retired in the meantime stated in September 2004 that the recommen-dations of his commission had not been implemented (Ynet 1 September 2004 httpwwwynetcoilarticles17340L-297169700html)

19 The Lapid Committee report has not been published It is on file with the authors For Jus-tice Orrsquos views on these issues see note 18 above

References

Al-Haj Majid 2000 ldquoAn Illusion of Belonging Reactions of the Arab Population to Rabinrsquos Assassinationrdquo In The Assassination of Yitzhak Rabin ed Yoram Peri 163ndash174 Stanford Stanford University Press

Benvenisti Meron 2004 ldquoWhat Lies at the Bottom of the Barrelrdquo Haaretz httpwwwhaaretzcomhasenspages463584html (accessed on 12 August)

Benziman Uzi and Attalah Mansour 1992 Subtenants Israeli Arabs Their Status and State Policy toward Them Jerusalem Keter (Hebrew)

Bishara Azmi 1995 ldquoBetween Nationality to Nation Reflections on Nationalismrdquo Teorya u-vikoret [Theory and Criticism] 6 19ndash45 (Hebrew)

Brubaker Rogers 1996 Nationalism Reframed Nationhood and the National Question in the New Europe Cambridge Cambridge University Press

Cohn Haim H 1989 Supreme Court Judge Talks with Michael Shashar Jerusalem Keter (Hebrew)Collier David and Robert Adcock 1999 ldquoDemocracy and Dichotomies A Pragmatic

Approach to Choices about Conceptsrdquo Annual Review of Political Science 2 537ndash565 Dahl Robert A 1989 Democracy and Its Critics New Haven and London Yale University PressDowty Alan 1999 ldquoIs Israel Democratic Substance and Semantics in the lsquoEthnic Democracyrsquo

Debaterdquo Israel Studies 4 no 2 1ndash15Gavison Ruth 1998 ldquoJewish and Democratic A Rejoinder to the lsquoEthnic Democracy Debatersquordquo

Israel Studies 4 no 1 44ndash72Ghanem Asrsquoad and Sarah Ozacky-Lazar 1999 The Arab Vote to the 15th Knesset (Studies of the

Arabs in Israel no 24) Givat Haviva Center for Peace Research (Hebrew)Ghanem Asrsquoad Nadim Rouhana and Oren Yiftachel 1998 ldquoQuestioning lsquoEthnic Democracyrsquo

A Response to Sammy Smoohardquo Israel Studies 3 no 2 253ndash267Haris Ron 2001 ldquoJewish Democracy and Arabic Politics Al-Ard Group in High Courtrdquo Plilim

[Crime] 10 107ndash155 (Hebrew) Jiryis Sabri 1976 The Arabs in Israel New York Monthly Review Press Kedar Alexandre 2000 ldquolsquoA First Step in a Difficult and Sensitive Roadrsquo Preliminary Observa-

tions on Qaadan vs Katzirrdquo Israel Studies Bulletin 16 3ndash11 Kimmerling Baruch 1989 ldquoBoundaries and Frontiers of the Israeli Control System Analytical

Conclusionsrdquo In The Israeli State and Society ed Baruch Kimmerling 265ndash284 Albany NY SUNY Press

mdashmdashmdash 1992 ldquoSociology Ideology and Nation Building The Palestinians and Their Meaning in Israeli Sociologyrdquo American Sociological Review 57 446ndash460


Knesset 1985 ldquoBill [to Amend] Basic Law The Knesset (Amendment No 12)rdquo Divre ha-Knes-set [Knesset Protocol] 42 30 (Hebrew)

Kretzmer David 1990 The Legal Status of the Arabs in Israel Boulder CO Westview PressKymlicka Will 1995 Multicultural Citizenship Oxford Clarendon Pressmdashmdashmdash 1998 Finding Our Way Rethinking Ethnocultural Relations in Canada Toronto Oxford

University PressLijphart Arend 1968 The Politics of Accommodation Pluralism and Democracy in the Nether-

lands Berkeley University of California PressLustick Ian 1980 Arabs in the Jewish State Austin and London University of Texas Press mdashmdashmdash 1989 ldquoThe Political Road to Binationalism Arabs in Jewish Politicsrdquo In The Emergence

of a Binational Israel The Second Republic in the Making ed Ilan Peleg and Ofira Seliktar 97ndash123 Boulder CO Westview Press

mdashmdashmdash 1990 ldquoThe Changing Political Role of Israeli Arabsrdquo In The Elections in Israelmdash1988 ed Asher Arian and Michal Shamir 115ndash131 Boulder CO Westview Press

Maletz Donald J 2002 ldquoTocquevillersquos Tyranny of the Majority Reconsideredrdquo The Journal of Politics 64 no 3 741ndash763

Mann Rafi 1998 Itrsquos Inconceivable Or Yehuda Israel Hed Arzi (Hebrew) Mautner Menachem 2000 Distributive Justice in Israel Tel Aviv RamotNavot Doron 2002 ldquoIs the State of Israel Democratic The Question of Israelrsquos Democratic

State in the Wake of October Eventsrdquo Masterrsquos thesis Tel Aviv University (Hebrew)Neiman 1984 Elections Appeal 284 Neiman vs Chairman of the Central Elections Commision

for the Eleventh Knesset PD 39 no 2 225 (Hebrew)mdashmdashmdash 1988 Elections Appeal 188 Neiman vs Chairman of the Central Elections Commision

for the Twelfth Knesset PD 42 no 4 177 (Hebrew) Or Commission 2003 Report of the State Commission of Inquiry to Investigate the Clashes

between the Security Forces and Israeli Citizens in October 2000 Jerusalem Government Printing Press (Hebrew)

Ozacky-Lazar Sarah and Asrsquoad Ghanem 1996 Arab Voting Patterns in the Fourteenth Knesset Elections 29 May 1996 Givat Haviva Israel Center for Peace Research (Studies of the Arabs in Israel no 19) (Hebrew)

Peled Yoav 1992 ldquoEthnic Democracy and the Legal Construction of Citizenship Arab Citizens of the Jewish Staterdquo American Political Science Review 86 432ndash443

Peled Yoav and Jose Brunner 2000 ldquoCulture is Not Enough A Democratic Critique of Liberal Multiculturalismrdquo In Ethnic Challenges to the Modern Nation State ed Shlomo Ben-Ami Yoav Peled and Alberto Spektorowski 65ndash92 Basingstoke Macmillan

Peleg Ilan 2004a ldquoJewish-Palestinian Relations in Israel From Hegemony to Equalityrdquo Inter-national Journal of Politics Culture and Society 17 no 3 415ndash437

mdashmdashmdash 2004b ldquoTransforming Ethnic Orders to Pluralist Regimes Theoretical Comparative and Historical Analysisrdquo In Democracy and Ethnic Conflict Advancing Peace in Deeply Divided Societies ed Adrian Guelke 7ndash25 Basingstoke Palgrave

Qaadan 1995 HCJ 669895 Qaadan vs ILA Katzir and Others PD 54 no 1 258 (Hebrew)Rabinowitz Dan Asrsquoad Ghanem and Oren Yiftachel eds 2000 After the Rift New Directions for

Government Policy towards the Arabs in Israel Tel-Aviv Inter-University Research GroupRosental Ruvik ed 2000 Kafr Kassem Events and Myths Bnei-Brak Israel Hakibbutz

Hameuchad (Hebrew)Rouhana Nadim and Asrsquoad Ghanem 1998 ldquoThe Crisis of Minorities in Ethnic States The Case

of Palestinian Citizens in Israelrdquo International Journal of Middle East Studies 30 321ndash346 Sarsquodi Ahmad H 1996 ldquoMinority Resistance to State Control Towards a Re-analysis of Palestin-

ian Political Activity in Israelrdquo Social Identities 2 395ndash412 mdashmdashmdash 2002 ldquoThe Peculiarities of Israelrsquos Democracy Some Theoretical and Practical Implica-

tions for Jewish-Arab Relationsrdquo International Journal of Intercultural Relations 12 119ndash133


Schmitt Carl 1976 [1932] The Concept of the Political New Brunswick NJ Rutgers Univer-sity Press

Shafir Gershon and Yoav Peled 2002 Being Israeli The Dynamics of Multiple Citizenship Cam-bridge Cambridge University Press

Shapiro Yonathan 1977 Democracy in Israel Ramat Gan Israel Massada (Hebrew) Smooha Sammy 1990 ldquoMinority Status in an Ethnic Democracy The Status of the Arab

Minority in Israelrdquo Ethnic and Racial Studies 13 389ndash413mdashmdashmdash 1997 ldquoEthnic Democracy Israel as an Archetyperdquo Israel Studies 2 198ndash241mdashmdashmdash 1998 ldquoThe Model of Ethnic Democracy Characterization Cases and Comparisonsrdquo

Paper delivered at the ldquoMulticulturalism and Democracy in Divided Societiesrdquo conference Haifa University

mdashmdashmdash 2002 ldquoThe Model of Ethnic Democracy Israel as a Jewish and Democratic Staterdquo Nations and Nationalism 8 no 4 475ndash503

Steinberg Gerald M 2000 ldquolsquoThe Poor in Your Own City Shall Have Precedencersquo A Critique of the Katzir-Qaadan Case and Opinionrdquo Israel Studies Bulletin 16 12ndash18

Sultany Nimer 2003 Citizens without Citizenship Haifa Israel MadaYardor 1965 Yardor vs Central Elections Commision for the Sixth Knesset PD 19 no 3 365 Yiftachel Oren 2000 ldquolsquoEthnocracyrsquo and Its Discontents Minorities Protests and the Israeli

Polityrdquo Critical Inquiry 26 725ndash756mdashmdashmdash Forthcoming Ethnocracy Land Politics and Identities in IsraelPalestine Philadelphia

University of Pennsylvania Press Zakaria Fareed 1997 ldquoThe Rise of Illiberal Democracyrdquo Foreign Affairs 76 no 6 22ndash43 Ziv Neta and Ronen Shamir 2000 ldquolsquoPoliticsrsquo and lsquoSub-politicsrsquo in the Struggle against Land

Discriminationrdquo Teorya u-vikoret [Theory and Criticism] 16 45ndash66 (Hebrew)


as such a desirable regime or form of state since some of the most morally repugnant governments have been based on majority rule Liberal autocracy Zakaria suggested may be superior to illiberal democracy as a form of govern-ment (ibid 29)1

To the credit of Israeli social scientists some of them had noted long before Zakariarsquos essay that Israeli democracy fell short of the ideal of liberal democ-racy and was therefore a problematic form of state The first Israeli social scientist to make the distinction between what he called ldquosubstantiverdquo (ie lib-eral) and ldquoformalrdquo (ie procedural) democracy was Yonathan Shapiro (1977 191ndash194) In the tradition of Max Weber and C Wright Mills his argument was based on an analysis of the Zionist Labor Movement as an organization of power operating in the service of a political elite Shapiro did not pay particu-lar attention to the status of Israelrsquos Palestinian citizens in his analysis but that question has occupied the center stage of the debate over Israeli democracy since the publication of Sammy Smooharsquos (1990) seminal article ldquoMinority Status in an Ethnic Democracy The Status of the Arab Minority in Israelrdquo

Smooha relied on a somewhat less minimalist definition of democracy than Zakariarsquos in order to argue that what he called ldquoethnic democracyrdquo still qualified as a democracy albeit of an inferior kind The model of ethnic democracy (to be elaborated below) was adopted with some modifications by Peled (1992) and Gavison (1998) while Sarsquodi (2002) and Peleg (2004a) preferred ldquoilliberal democracyrdquo The model was criticized among others by Yiftachel (2000 forth-coming) who claimed that Israel should be called an ldquoethnocracyrdquo because it is ruled by a Jewish lsquoethnosrsquo rather than by an Israeli lsquodemosrsquo and by Navot (2002) who argued that Israel is not a democratic state but merely a ldquomajoritarianrdquo one because of the structural tyranny practiced by the Jewish majority2

In this essay we wish to consider both the current state of the debate over Israeli democracy and the state of Israeli democracy itself through the lens of the citizenship status of Israelrsquos Palestinian citizens For that purpose we will analyze the two main positions in this debatemdashSmooharsquos and Yiftachelrsquosmdashfocusing on the ldquoframework decisionsrdquo (Kimmerling 1992) that inform their arguments including their definitions of democracy After assessing the mer-its of each position we will argue on the basis of our own set of framework decisions that the question of Israelrsquos democracy should be viewed dynami-cally and historically and that the Israeli state has been evolving from a state resembling non-democratic ethnocracy through ethnic democracy toward non-democratic majoritarianism

Framework Decisions

A number of theoretical and methodological decisions have to be made before one can approach the question of Israeli democracy (or any other issue of social inquiry for that matter)







Ethnic Democracy











Ethnocracy
















cal order








































































Conclusion














Notes




















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Ethnic Democracy











Ethnocracy
















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Conclusion














Notes




















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Ethnocracy
















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Conclusion














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cal order








































































Conclusion














Notes




















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Conclusion














Notes




















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Notes




















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References




















































Ethnic Democracy Revisited

Documents

Transcript of Ethnic Democracy Revisited