BICOM

Alexander Yakobson is an Associate Professor of Ancient History at the Department of History at the Hebrew University of Jerusalem. Together with law professor Amnon Rubinstein, he authored Israel and the Family of Nations: The Jewish Nation-State and Human Rights, published in July 2008 by Routledge. This article is reproduced with permission from Justice, Issue no. 49 (2011).  Justice is the magazine published by The International Association of Jewish Lawyers and Jurists (IAJLJ).

In discussing Israeli democracy, the usual procedure is to take for granted the fundamental fact that the political system in Israel is a multi-party parliamentary democracy, and then to point out this democracy’s weaknesses and flaws. These flaws are sometimes described as particularly noteworthy “precisely because” Israel is a democracy; or, as some would have it, “for a country that claims to be a democracy” (a neat way of turning the existence of democracy in Israel into a reproach without actually admitting that it exists). And indeed, when it comes to discussing the Israel democracy’s flaws, there is no lack of fruitful themes for discussion. But there has never been anything to be taken for granted about the very existence of democracy in Israel. It emerged and developed under conditions and in an environment about as favorable to liberal democracy as the Dead Sea is to fishing. Nevertheless, Israel over time became more – rather than less, as is often claimed – of a liberal democracy.

I venture to suggest that if ever it comes to awarding a Nobel prize for democratic achievement in recent decades, this prize should go neither to Denmark nor to Norway. With all due respect to these exemplary democracies, no extraordinary achievement is involved in maintaining a liberal democracy in the prosperous and peaceful northwestern corner of Europe where democracy has been deeply rooted for generations and national conflicts are unknown. Praising such countries for their democracy is rather like praising angels for not succumbing to temptation. The Nobel prize for democracy should go to two non-Western countries vastly different from each other, where democracy with many flaws has emerged and flourished under nearly impossible conditions – India and Israel. Saying so is in no way intended to minimize the flaws, or the need to confront and rectify them. An old Israeli joke said that in Germany there is an economic miracle, and in Israel it’s a miracle that there is an economy. The state of Israel’s economy has improved since then; so has the state of its democracy. While it is true that in most cases, a democracy (no less than an economy) is better served by pointing out the flaws with a view to correcting them than by celebrating the achievements, nevertheless it is sometimes worth our while to recall what a miracle it is, in this country, that there is a democracy.

No modern free society came into being and was shaped under conditions as adverse to liberal democracy as Israel’s. One doubts if any computer, fed with all the relevant data, would return the answer that a country existing under such conditions can maintain a liberal democracy. The first obstacle to liberal democracy in Israel has, naturally, been the Arab-Israeli conflict. It is an understatement to say that Israel has been involved in a violent national conflict since the country’s inception more than 60 years ago. In truth, the conflict preceded the establishment of the state by decades. Not merely the state but Jewish-Israeli society itself came into being and took shape during the conflict. This conflict, while falling far short of a permanent war, has meant that Israel never knew a day of peace. It has known ups and downs; few will dispute that the last decade saw it, and its violent aspect, exacerbated.

It is no secret that violent conflicts and grave threats are apt to lower the democratic standards even in long-established and highly developed democracies. A nation under a serious threat invariably deviates, to some extent, from the standard – that is to say, peace-time – liberal-democratic norms. The only real argument – an important argument indeed – is over the extent of the deviation versus the gravity of the threat. What happened in the United States after 9/11 is a case in point. Without going into any of the controversies surrounding Bush’s “war on terror,” it is clear that this was never only about Bush. The Obama administration has reversed the controversial aspects of his predecessor’s anti-terror and security policy, once strongly criticized by Obama himself, only to a very modest extent, and is now being criticized for this by some of his liberal supporters. European countries, where today it is fashionable to denounce American brutality and paranoia, have their own record of robust extraordinary measures in times of emergency, including terrorism, not to speak of war. But Israel is not a democratic state that encountered a state of emergency at some point, dealt with it with the help of appropriately strong medicine, and then recovered and went back to normal. Rather, the emergency pre-dated the state itself, and has accompanied it, with various degrees of severity, ever since (which does not of course mean that claims of emergency and security have never been abused – in Israel and elsewhere). Whole generations of Israelis were born into the conflict and raised under it.

The conflict, it should be stressed, is not purely external – and not only because it takes place, especially where the Palestinians are concerned, next door rather than beyond the seas. It inevitably casts a shadow over relations between the Jewish majority and the Arab citizens of the state – by far the most significant issue of civil rights in Israel. This is not simply a matter of majority versus minority, which is usually complicated and challenging enough, even without the backdrop of a violent conflict, when the minority is as large, and as culturally distinct, as in this case. The Arab minority considers itself, overwhelmingly, as part of the Palestinian people. Its leaders and spokespersons express not just cultural and ethnic affinity and not just political solidarity with the Palestinians in the territories (and often with neighboring Arab states). They are apt to voice, making use of the Israeli freedom of expression that has expanded over time, more or less explicit support for the other side during actual armed conflict (involving, as it has done especially in the last decade, systematic attacks on the concentrations of Israel’s civilian population). This is something which is not always tolerated in other contemporary democracies. In this, the majority in Israel (which is but a tiny minority in the Arab-Muslim Middle East) faces a challenge hardly paralleled in the history of relations between a national minority and a national majority – though it must be stressed that the Arab minority in Israel, for all the provocative rhetoric voiced by its representatives, is also far more peaceful in practice than this rhetoric would imply, and when compared with other minorities stranded in a national conflict. Moreover, polls suggest consistently that its actual attitude to the state is much more positive than the rhetoric of its leaders.

The composition of Israeli society militates against the development of a liberal democracy no less that the chronic, open-ended state of emergency. The vast majority of Israel’s Jewish population hails, originally, from countries without a democratic political culture, and in many cases, with a highly undemocratic one. Roughly half originates in the Arab Muslim countries of the Middle East; the second, “European’’ half, including, importantly, the country’s founders – overwhelmingly, in the non-democratic (and less developed) countries of Eastern Europe (including Czarist Russia and the Soviet Union). This mixture, characterizing Jewish-Israeli society, was basically created during the first several years of Israel’s independence after 1948. At that time, some 650,000 Israeli Jews (many of them newcomers themselves, scarcely settled down, and in a country facing huge economic difficulties) received more than a million Jewish immigrants, most of whom came with little or no property. The European equivalent of this would be for Britain or France to receive within the space of a few years, under similar conditions, more than 100 million immigrants, mostly from underdeveloped countries with illiberal political cultures, and integrate them immediately into the political system, with the immigrants receiving citizenship and the vote upon arrival. This would have presented a very considerable challenge to any democracy, however well-established. The large Arab minority in Israel (approaching 20 percent of the population) is without experience of democracy except for Israeli democracy itself, imperfect as it is in this respect. The usual perception of Israel as a “Western’’ enclave in the Middle East is highly dubious in point of fact; Israel is considered Western because it is a success story, rather than being a success story because it is Western.

It has nowadays become fashionable to stress the highly undemocratic background of Avigdor Lieberman and most of his voters, Russian-speaking immigrants, in explaining the challenge they present to liberal democratic values. There is, no doubt, much truth in this, and it is good to see that political correctness doesn’t always stifle free public debate. But this undemocratic background is anything but unprecedented. This has been true for previous waves of mass immigration no less than for the mass immigration from the former Soviet Union in the 90s. Thus challenged, repeatedly and on a massive scale, how could – one asks – any liberal values survive in this country? This, then, is the remarkable story of Israeli democracy: millions came here, overwhelmingly from non-democratic countries, and built a vibrant democracy – under a chronic state of emergency, in the midst of a nasty national conflict lasting for decades, in the heart of the Middle East.

(Of course, strong electoral support for populist and nationalist right-wing parties, that are not above appealing to less-than-noble sentiments of the public, is a phenomenon well known, nowadays, in several of Europe’s long-established, peaceful and prosperous democracies. These do not require masses of Russian-speaking newcomers among their electorate in order to reach this result; though no Muslim member of the Dutch parliament, for example, has ever publicly praised a group firing rockets into Dutch cities.)

The very imperfect democratic system established by the founders in Israel’s first years – an extraordinary achievement in the circumstances of that time – included, owing to a complicated mixture of political, social and cultural reasons which merit a discussion going far beyond the scope of this paper, a mechanism for steady improvement. In the early 60s, while David Ben-Gurion was still prime minister, and though his style of leadership was certainly authoritarian by our standards (and also those of many of his contemporaries), the system was already much more liberal than in its first years. By 1977, when Labor was voted out of power, Israel had grown much more liberal than in early 60s. This event was in itself an important milestone in the development of democracy, rather like the first time that the Indian Congress party, similarly identified with the state, lost power – whether or not one feels fully comfortable with either Hindu nationalism or the coalition of right-wing and religious parties that came to power in Israel. Today this country is undoubtedly much more of a liberal democracy than in 1977, though the opposite was confidently predicted by some, and feared by many, when Menachem Begin came to power. Of course, one can argue that there is nothing especially remarkable about this process: the entire Western world has become much more liberal since the 50s. But it is far from trivial that Israel is, politically, part of this world and of this process. Egypt, it should be recalled, was, in early 50s, much more liberal than it has grown to be in recent decades.

Recently, largely because of a series of highly controversial bills sponsored by Avigdor Liebeman’s party, Israel Beitenu, and the aggressive rhetoric accompanying them, one often hears – both in Israel and in the Western media – that Israeli democracy is deteriorating and is in a grave danger. It is worth recalling how often, and how confidently, this has been asserted in the past. Since 1977, it has been claimed repeatedly that Israel’s democracy is deteriorating and some form of clerical fascism is emerging. In the aftermath of the 1977 election, a member of the outgoing Labor government burned his papers, fearing what might happen if they fell into the new regime’s hands. These fears, then, were not confined to some radical fringe.

In a somewhat less dramatic fashion I shared and voiced them too. These fears seemed reasonable under Begin, whose bombastic nationalistic rhetoric before widely enthusiastic crowds I cannot even now recall without shuddering. While Begin was at once a nationalistic rabble-rouser and a liberal prime minister (who, among other things, did a lot to strengthen the power and prestige of the Israeli judiciary), some of his political allies, both in his own party and among its coalition partners, were quite obviously anything but great liberals. We voiced those fears under Shamir, when we had occasion to miss Begin’s pedantic parliamentarism, legalism and firm commitment to liberal democracy (little appreciated by us at the time). I shared these fears well into the 90s. Then, at some point, I started noticing what an abyss had opened between the rhetoric of “democracy is in danger’’ current in left-liberal circles and the actual reality on the ground. While many among those who strongly opposed the policies of the Israeli Right were constantly speaking of the dangers that threatened Israeli democracy, and taking its deterioration for granted, the country was undergoing a far-reaching and wide-ranging process of liberalization.

As part of this process, it has become much more acceptable to label Israel a fascist (or semi-fascist) state, or at any rate to deny that it is a democracy at all. Today, much more than in 1977, when such views were largely confined to fringe outlets, the mass media is wide open to such a message (which, naturally, is also echoed abroad); every established platform is open to it, often at public expense; from time to time somebody receives an official prize for voicing it. You don’t believe that fascism is engulfing us? Why, only the other day I heard it all explained so nicely on Army Radio.

Needless to say, the left has no monopoly on wild rhetorical exaggerations. The Israeli far right, whenever it feels that the state has failed to pamper it sufficiently, immediately proceeds to denounce it, in the same grotesquely self-refuting manner, as a Stalinist dictatorship. The mainstream right, too, is not wholly above deploying such tactics when it happens to find itself in the opposition. Admittedly, a certain overstatement of an existing problem or a looming danger (preferably, without losing all contact with reality) may sometimes be pardonable, perhaps even useful. But the real question is – in which direction are things moving? How has Israeli democracy faired since it became fashionable to talk about its deterioration and to warn against the danger of its collapse?

Even before 1977, Prof. Yeshayahu Leibovich made his famous prediction that the occupation of the West Bank and Gaza would destroy Israeli democracy. I must admit I found this thesis very convincing when I first heard it. How can a people remain free when they rule another people by force? It turns out they can, sometimes. One might argue that we don’t actually deserve to be a democracy, because of the occupation. Perhaps. In order to determine what each side to this conflict deserves, its respective contributions to the conflict (and attitudes to the other side’s national rights) need to be impartially examined. I still believe that in the long run, regardless of how one apportions the blame, perpetuating the occupation would doom Israeli democracy because it would doom Israel itself. If the land between the Jordan and the Mediterranean is not partitioned between its two peoples, eventually a single state will emerge – not bi-national, as some delude themselves, but Arab and Muslim. This does not, however, change the fact that Israel today is much more democratic and liberal than it was in the 70s.

Today, unlike before 1977, the ruling party in Israel always knows that the electorate can realistically be expected to vote it out of power. The Knesset is much stronger vis-à-vis the executive. Parliamentary committees exercise a much stronger oversight of ministers’ activities and of secondary legislation. Much of the legislation originates now in private members’ bills, quite often by opposition deputies – including those from the radical opposition. When Tamar Gozansky, a Communist deputy famous for carrying dozens of bills on social matters (not on vital issues of policy, naturally, but still important enough for those involved), retired from the Knesset several years ago, her accomplishments as a parliamentarian were rightly celebrated. Israeli parliamentarism had a share in the celebration: such a legislative career would have been unthinkable in the good old days of Labor hegemony, when Communist members of the Knesset (and in the 50s, to a large extent, members of the main right-wing opposition too) were shunned and isolated. Nor, indeed, would such a thing be possible today in most countries with a parliamentary system – certainly not in Britain, where a private member’s bill may not increase government expenditure.

Israel’s political parties, once ruled firmly from atop, have become much more democratically governed (and, I am afraid, considerably more corrupt as a result). Local self-government is less dependent on the central government. The State Comptroller, once a thoroughly unimportant institution, has grown powerful enough to imperil a prime minister’s political survival (as happened to Ehud Olmert). Civil society is much more developed, vibrant and influential. The judiciary has grown much stronger – first and foremost, the High Court of Justice, but also the independent attorney general. Claims of national interest and state security meet a much less deferential response in both the higher and the lower courts. Even military courts are quite capable of overruling the government on matters that it regards as a vital national interest (even when it doesn’t overstep any legal boundaries): witness the relatively light prison sentences imposed by military judges (much shorter than what would probably be imposed by American courts in a similar situation) on high-ranking Hamas officials after Gilad Shalit’s abduction, frustrating the government’s obvious intention to keep those people behind bars long enough to pressure Hamas into releasing the Israeli soldier.

The High Court has grown much more activist and interventionist, much more likely to overrule the government on sensitive issues, including security. The security establishment is under much greater legal, parliamentary and media scrutiny. The media is much more free, aggressive and biting. Military censorship has largely become a joke. Even on strictly operational matters it often finds it difficult to control the flow of information, as was demonstrated during the Second Lebanese War. Today it sounds incredible that yet in the 80s, a national newspaper (‘‘Hadashot”) could be shut down by military order for several days because it had defied the army censors on a matter that had nothing to do with military secrecy in any proper sense (by exposing the killing of two captured terrorists).

Rather than the mouths of the opponents of the occupation being shut (as Leibovich predicted), what really happened was that the mouths of the opponents of Zionism were widely opened. Every Zionist sacred cow is today slaughtered with gusto – in the media, in  academia, in the arts and in the state-funded cinema industry – incomparably more so than in the 70s. Thanks in large measure to increased judicial activism, the rights of the Arab minority are much better (though still far from perfectly) protected and enforced; the High Court is now, for example, willing to interfere in budgetary allocations in response to claims of discrimination, and even to mandate, in some cases, the appointment of Arab representatives to public bodies. Despite the religious parties’ coalition clout, the status quo on religion and state (still quite unsatisfactory from the liberal standpoint) has been eroded in favor of the secular public in many areas. The country – even Jerusalem, not to speak of Tel Aviv – has been covered with places open on Saturday and offering non-kosher food. Gay pride parades are officially-sponsored in Tel Aviv, but they also take place in Jerusalem – a sure sign that we have become, or are fast becoming, a Middle Eastern theocracy. The Israel Defense Forces have long left the Clintonian “don’t ask, don’t tell” far behind. People praise Tel Aviv as an island of liberalism and tolerance in a sea of clerical fascism – as if such a sea could ever have tolerated such an island in its midst. Most of what Tel Aviv is praised for emerged, or reached its peak, during the decades in question.

None of this is meant to present an idealized picture of the past decades. All the negative phenomena and warning signs that people talk about today were very much in evidence throughout that period. Shrill nationalistic rhetoric abounded; at its worst it was (and is) indeed racist and fascist. Appalling things were said in the name of Judaism. People on the left were routinely accused of disloyalty, quite often of actual betrayal; what they themselves sometimes said about their opponents is beside the point right now. Grave instances of extremist violence occurred, including, on several occasions, murder. Wild illiberal measures were often proposed. On some occasions, undemocratic steps were actually taken by the authorities and draconian laws passed. The Supreme Court turned them into a dead letter. The same court will today deal in the same spirit with any undemocratic bill that is passed – if it passes (for there is often, in such cases, a huge difference between what is originally proposed and what is eventually adopted). Now, however, unlike in the 70s, the Court has the power to actually annul illiberal legislation.

In the 80s, the Knesset passed a law banning political parties that opposed Israel’s right to exist as a Jewish state, as well those espousing racism or hostile to democracy, from participating in elections. At the time, the Zionist left voted for the law (rightly expecting that it would lead to the disqualification of Meir Kahane’s racist movement). Under today’s liberal standards, such a law would have been roundly denounced as draconian and racist. At that time, it was not expected that the law would drive the Arab representatives from the Knesset, because the Communist party, which then received most of the Arab protest vote, and always had Arab deputies, was much more moderate in its rhetoric on this issue, perhaps remembering its support, in accordance with the Soviet line at the time, for the UN partition plan providing for a “Jewish state’’ and an “Arab state’’ in Mandatory Palestine. Since then, the state has become more liberal, while the Arab leadership, which now consists mostly of Arab nationalists and members of the Islamic Movement, has become more radical. But although the Arab parties in the Knesset have turned the rejection of the Jewish state into their most important political banner, the Supreme Court has rejected, and will undoubtedly continue to reject, using its power of interpretation with considerable flexibility and ingenuity, all attempts to disqualify them on the basis of this law.

The so-called “Nakbah bill” has recently been adopted by the Knesset. In its original form, it sought to criminalize the practice of marking Israel’s Day of Independence as a day of mourning, on the part of Arab citizens, for the defeat in the 47-48 war and its consequences. Any law adopted in this form would be sure to be annulled by the Supreme Court as violating freedom of expression. The bill was eventually watered down to a partial and qualified ban on government subsidies to any group that practices what it originally tried to criminalize. Why anyone who insists on turning a country’s Day of Independence into a day of public mourning should seek government subsidies for this particular act of offence and provocation, rather than doing it at their own expense, is rather a mystery. The law as adopted will probably be pretty meaningless in practice, for it will be anything but easy to prove, to the judges’ satisfaction, that what any particular act of mourning referred to was the Day of Independence as such.

That a string of dubious, and sometimes clearly undemocratic, private members’ bills is now, regrettably, before the Knesset, does not mean that civil rights in Israel, and in particular freedom of expression, are likely to erode. I venture to predict that Israeli citizens, Jews and Arabs, will continue to enjoy the right not merely to reject the Zionist ideology and narrative, but to express open support for the other side during actual armed conflict. Sometimes it seems that tabling draconian bills is mainly an attempt to score public-opinion points, rather than to bring about the changes these bills notionally promote. . Whenever such a move is made, it must of course be strongly opposed – but not necessarily by bemoaning the cruel fate of Israeli democracy, as has become customary on such occasions.

The price of freedom is eternal vigilance, not eternal panic-mongering. Democratic values and norms can never be taken for granted. To some extent they are always in danger – liable to be infringed even when democracy is in no danger at all. The 60s in America saw, overall, a great improvement in civil rights; democracy was never in danger. This does not mean that democratic norms were never violated. Certainly, there are illiberal and undemocratic phenomena and forces in Israel; lately, it seems that in Europe, too, the sky is not entirely cloudless in this respect. Such forces and tendencies need to be vigorously confronted. In the meantime, it is also worth pointing out, from time to time, especially since the very opposite is so often and so loudly maintained, that the story of Israeli democracy has to date been a tremendous achievement.