The Two-State Model and Israeli Constitutionalism: Impact on the Palestinian Citizens of Israel

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A LOT OF INK has been spilled on the topic of the two-state solution. Most of the literature focuses on specific topics such as the economy, water, or security. In discussions of other questions such as citizenship and human rights, attention has largely been directed at possible solutions to the Palestinian refugee problem, often described as one of the most complicated and contentious of all the issues to be settled. The right of Palestinian refugees to return to towns and villages of origin that are now part of Israel would challenge the underlying premise of the two-state model, namely the separation of Palestinians and Israelis into two distinct geographical areas. The quip, “we are here, and they are there,” was a neat summing up of the problem by former Israeli prime minister and defense minister Ehud Barak. But what would be the impact of the two-state solution on the Palestinian citizens of Israel (PCI) who constitute 20 percent of the country’s population? By and large, this question has remained peripheral to examinations of the two-state solution and little attention has been devoted to the PCI.

Academics such as philosopher Asa Kasher and sociologist Sammy Smooha have argued that the creation of a Palestinian state will ipso facto eliminate the current discrimination against the PCI. Others, like Nadim Rouhana and Oren Yiftachel, do not share their optimism and anticipate that the PCI’s exclusion from Israeli power centers and from the state’s character or identity will persist largely unchanged. This article assesses the potential outcome of a two-state solution for the PCI focusing mostly on the effect of such a settlement on the Israeli constitutional regime and, more specifically, the implications of such a solution for the strong ethnic underpinning of that regime. The argument developed here is that the creation of a Palestinian state would actually give Israel more room to assert and emphasize its Jewish character at the expense of the PCI, rendering their citizenship even more flawed, and exacerbating the current state of inequality between Jewish and Palestinian citizens of Israel. The article provides supporting evidence for the argument at hand by referencing both Israeli leaders’ statements regarding the future political rights of the PCI and patterns in legislation adopted or under discussion in the Knesset. The conclusion is based on an examination of aspects of the Israeli constitutional system that impact the PCI and their relation to the state directly, as well as the likely repercussions entailed by the creation of a Palestinian state.

Israel’s constitutional system has a direct impact on the PCI and their relationship to the state, as manifested in the following three arenas: the constitutional system’s instability; the constitutional definition of Israel as a “Jewish and democratic” state; and the exclusion of the PCI from “the people,” the political unit with the power to shape the constitution. Although they are closely interrelated, these three elements will be analyzed separately in order to shed a clearer light on the implications of a two-state settlement for the PCI. […]

The justification for restricting rights is based on the argument that Israel is the “nation-state” of the Jewish people and not of the Palestinian people and that Palestinians who are citizens of Israel will potentially be able to exercise those (currently restricted) rights in their own future state. Hence, according to this argument, the future creation of the “nation-state of Palestine” justifies restricting the national and political rights of the PCI presently and will eventually eliminate the tension in the state’s definition. While these observations are mainly based on the theoretical writings of scholars, such a position is no longer confined to the realm of theoretical debate and is making its way into the legal reasoning of the courts. For example, one of the justifications advanced by the Supreme Court for limiting the right of Palestinian citizens to family reunification has been that the constitutional right to enjoy family life does not mean exercising that right in Israel. As long as citizens can exercise the right somewhere, it is not a violation of the right to family life if they cannot reunify with their family in Israel. While the Court appears to be applying this restrictive understanding of the right to all Israeli citizens, and not just the PCI, it is clear from the reasoning, the context, as well as the constitutional and legislative frameworks, that this restriction applies only to the PCI. . . .

Mazen Masri is a lecturer in law at the City Law School, City University London. He has previously practiced law in Israel and has served as a legal advisor to the PLO’s Negotiations Affairs Department.

This article appears in the latest issue of the Journal of Palestine Studies Vol. 44 No. 4. Read the full article online at the Institute for Palestine Studies.

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