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Israeli Public Opinion and Separation from the Palestinians
By Yehuda Ben Meir and Gilead Sher
in Strategic Survey for Israel 2013-2014, eds. Shlomo Brom and Anat Kurz , Tel Aviv: INSS, 27.1.14
The purpose of this article is to examine the attitude of civil society in Israel to the political process with the Palestinians, with particular attention to implementation of an agreement between the Israeli government and the Palestinians should one be reached in the framework of the talks that began under American auspices in late July 2013. The article first analyzes public opinion in Israel on matters pertaining to a permanent agreement between Israel and the Palestinians and the alternatives available to Israel if the negotiations fail or reach an impasse. The second part of the article assesses the legal-constitutional basis for implementing an agreement or any other alternative endorsed by the Israeli government, and considers the prospects for shaping a national consensus in these contexts.
Public Opinion
Public opinion in Israel on the Palestinian issue and the future of Judea and Samaria is extremely complex. For 46 years since the Six Day War, and especially in the 40 years since the Yom Kippur War, and even more so in the past 20 years since Israel and the PLO signed the Oslo Accords, a powerful and divisive national debate has been underway in Israeli society over the future of the territories. The dispute in public opinion encompasses emotional, pragmatic, national, historical, religious, and security concerns. The heart of the dispute, the issue of the Israeli settlements in the territories, highlights the three main splits across Israeli society: national (Jewish-Arab), religious, and political. Any material discussion of this subject must therefore take the complexity of public opinion into account.
Furthermore, the exact wording of any question in a public opinion survey aimed at assessing trends in public opinion is very important. Similar questions that are formulated in different terms are likely to paint different pictures and lead to correspondingly different conclusions. In addition, it is possible for similar questions presented to those questioned to produce apparently contradictory results that seem illogical to someone not well versed in public opinion surveys. These contradictory results testify to the complexity of the public’s attitude towards national security issues in general, and the conflict with the Palestinians in particular, and hence the importance of relying on a broad range of formulations and approaches. Only by weighing the different answers and examining the variety of results for all data can a comprehensive and representative picture of Israeli public opinion be obtained.
Notwithstanding the formidable challenge, therefore, a thorough understanding of public opinion is essential for a constructive assessment of the implications for decisions by the Israeli government, including its positions on negotiations. The nation’s leaders and governments can influence, shape, and sometimes even completely change public opinion – but up to a point. In the absence of public support, it will be very difficult for any government to adopt a policy and implement far reaching decisions. The policy and decisions of every Israeli government on key issues of national security are to a great extent subject to the pressure of public opinion. A government in Israel cannot ignore the public’s views, certainly not when at stake is a permanent agreement with the Palestinians, which is viewed by many in Israel as an existential issue.
There have certainly been cases in Israel’s history in which strong leadership and a dramatic course of events have caused a turnaround in public opinion. Menachem Begin’s decision to withdraw completely from the Sinai Peninsula, including Sharm el-Sheikh, and Yitzhak Rabin’s decision to recognize the PLO as the sole legitimate representative of the Palestinian people are two examples of this. Both of these cases involved a highly esteemed, albeit controversial, leader, whose policy was a courageous response to formative events – the dramatic visit to Jerusalem by Anwar Sadat in the first case, and Yasir Arafat’s letter to Rabin recognizing Israel’s right to live in peace and security and rejecting terrorism in the second case. These cases proved that the saying “in politics, never say never,” is also true of public opinion, and strengthened the belief in the potential effect of strong political leadership on public opinion and its ability to change public opinion. At the same time, such cases are few and far between.
Over the past 28 years, the Institute for National Security Studies has engaged in a project of monitoring public opinion in Israel among adult Jewish Israelis on all national security issues, particularly those pertaining to the Israeli-Palestinian conflict. The most recent publication of the National Security and Public Opinion Project, issued in early 2013, includes an in-depth analysis of public opinion trends on this key issue.
An analysis of the results clearly indicates that most of the Israeli public wants to separate from the Palestinians in one form or another. A decisive majority of the public supports both the establishment of a Palestinian state and a solution of “two states for two peoples.” In the survey conducted in 2012, 59 percent of the Jewish public supported the establishment of a Palestinian state, and 69 percent supported a solution of “two states for two peoples” – two positions that clearly reflect a desire for separation. Since 2000, except for two years, 50 percent or more of the Jewish public has expressed consistent support for the establishment of a Palestinian state. Since 2006, when a question about the attitude toward a solution of two states for two peoples was included in the survey, more than 60 percent of the Jewish public supported this idea. Another finding that reinforces this picture is the public’s clear aversion to a halt in negotiations with the Palestinians. Even though the percentage of those who believe that a peace agreement can be reached with the Palestinians has declined since the second intifada, and less than a third of the respondents feel that it is possible to reach such an agreement, most of the public oppose halting the process. These figures indicate that despite pessimism regarding the process, the public does not want to cut the rope. It can therefore be concluded that the public ultimately realizes the need to arrive at some solution in the direction of separation from the Palestinians.
The desire for separation is also reflected in the attitude toward the Jewish settlements in Judea and Samaria. The Jewish public distinguishes between the large settlement blocs that are physically close to pre-1967 Israel and the small isolated settlements located in the heart of densely populated Arab communities in the West Bank. Support for removal of all the Jewish settlements in Judea and Samaria as part of a permanent agreement is minimal – only 14 percent. Half of the public, however (about 49 percent), is willing to remove “the small and isolated settlements” as part of a permanent agreement (together with those who support removal of all the settlements, there is a majority of over 60 percent in support of removing small and isolated settlements).
A significant indication of the Jewish public’s desire for separation from the Palestinians is the clear and unequivocal weight of demographic considerations, in contrast to geographic considerations. In studies conducted in the framework of the INSS project, interviewees were asked to rate four political values in order of their importance: a country with a Jewish majority, Greater Israel, democracy, and a state of peace. With time, the “Jewish majority” value has become the public’s most important value, becoming the dominant value over the past decade. In recent years, two thirds or more of the public defined a “Jewish majority” as “extremely important” or “second most important.” The proportion of respondents who selected a “Jewish majority” as “extremely important” or “second most important” reached 65 percent in 2004 and 70 percent in 2006, and remained at that level until 2012. The support for a “Jewish majority” is undoubtedly the most important value for most sections of the population. This value was the most important in 2012 for 58 percent of ultra-Orthodox Jews, 60 percent of the religiously observant population, 63 percent of the traditional religious population, 50 percent of the traditional non-religious population, and 36 percent of the non-religious population. Similarly, a “Jewish majority” is the first or second most important value among 84 percent of the ultra-Orthodox sector, 85 percent of the religiously observant population, 84 percent of the traditional religious population, 74 percent of the traditional non-religious population, and 53 percent of the non-religious public.
On the other hand, support for “Greater Israel,” which implies not separating from the Palestinians, is the lowest of the four values. Only 10 percent of the population chose “Greater Israel” as the most important value, and it was the first or second most important value for 29 percent of the Jewish population. In recent years, the proportion of those selecting this value as the most important or second most important has not exceeded one third. This group has a profound commitment to the idea of the entire Land of Israel, and is willing to wage a determined struggle to realize it – characteristics that are likely to give it weight and influence beyond its numerical proportions. Nevertheless, from the perspective of the public as a whole, support for a Jewish majority – which many regard as linked to the need for separation from the Palestinians – is more than double the percentage of support for the Greater Israel.
Where negotiations with the Palestinians are concerned, it is important to keep in mind that the people’s leaders are conducting the talks, not the people themselves. Governments, not people, sign agreements. Israel, however, is a democracy, in which the government rules with the consent of its citizens. Any Israeli government will therefore sign an agreement only if it believes that it will eventually win the support of a majority of the public. The question is what negotiations outcome has a chance of winning the support of a majority of the people in Israel.
In order to answer this question, respondents were asked, “If the Israeli government approves a permanent agreement with the Palestinians based on two states for two peoples, and the agreement is brought to a referendum for a decision, how will you vote?” The result was clear cut and absolute – 51 percent answered that they would vote in favor, 27 percent said they would vote against, and 22 percent said they were undecided or did not know. The result showing a ratio of 2 to 1 in favor is no surprise, because 69 percent of the respondents supported the principle of two states for two peoples. It is possible that not presenting particulars of the agreement, other than “two states for two peoples,” explains the high proportion of undecided.
In order to better understand where the public stands with respect to a detailed permanent agreement, the respondents were asked the following question: “If the Israeli government approves a permanent agreement with the Palestinians whereby a Palestinian state will occupy 93 percent of the West Bank and the entire Gaza Strip and all of the Arab neighborhoods in Jerusalem; Israel will be recognized as the nation state of the Jewish people, will retain the settlement blocs, including the Jewish neighborhoods in Jerusalem and the Old City, and will maintain a military presence along the Jordan River; the Palestinians will renounce all claims and will declare the end of the conflict, and the refugees would return only to the Palestinians state; the Temple Mount will be under ‘God’s sovereignty,’ and the agreement is brought to a referendum, how will you vote?” This kind of agreement reflects the general framework of the Clinton parameters, and to a greater extent what former Prime Minister Ehud Olmert proposed to the Palestinians. It contains parts acceptable to the Israeli public, and also parts that the public will find very difficult to accept. The result, although as expected was not as clear cut as in the general question, was still decisive: 46 percent said they would vote in favor, 34 percent said they would vote against, and 20 percent said they were undecided or did not know. In comparison with the general question, the differences are not dramatic at all – the percentage in favor fell by 5 percent, while the percentage opposed rose by 7 percent (the percentage of undecided fell 2 percent). Great caution should be exercised in drawing conclusions on the basis of hypothetical questions, but it can still be concluded from the data with a large degree of confidence that if an Israeli government brings such an agreement to a referendum, it would win a majority (the figures relate to the Jewish population; it is reasonable to assume that support among Arab Israeli citizens would be even higher).
The picture presented so far indicates strong support among civil society in Israel for the idea of separation from the Palestinians. It therefore follows that any agreement reflecting this motif is likely to win a great deal of support. However, public opinion is extremely complex and includes more than a few contradictions, and there is data that challenges the public commitment to this end goal. When the overall agreement is broken down into separate elements, the support for each individual element is quite low. Since 2007, a majority of the Jewish public has opposed the slogan “land for peace,” and in 2012, 56 percent opposed the idea of land for peace, compared with only 30 percent that supported it. Indeed, the opposition to “giving up territories” or “returning territories” is rooted deep within Israeli popular opinion.
With respect to different areas in Judea and Samaria, the respondents were asked over the years whether Israel should give up each of the specified territories in the framework of a permanent agreement ending the conflict with the Palestinians, or whether it should continue holding it, even at the cost of failing to achieve a permanent agreement. There was little readiness to return most of the areas. In 2012, 20 percent were willing to return the Etzion bloc, 22 percent the Jordan Valley, 34 percent western Samaria, and 36 percent Hebron. Only for the isolated settlements on the mountain ridge of eastern Samaria was there a clear majority in favor of returning them – 58 percent, a figure that probably reflects at least in part a desire for separation. An intriguing finding, which also hints at the desire for separation, is the relatively high support for returning the Arab neighborhoods in Jerusalem – 47 percent.
The Jewish public apparently does want separation from the Palestinians, but its willingness to take the necessary steps to bring it about is limited, as a result of the great suspicion among the Israeli public concerning the true objective of the Arabs. The respondents were asked what was the “ultimate aspiration of the Arabs.” The picture, as it has emerged in recent years, is fairly stable. Only a minority (one third in 2012) believed that the Arabs’ ambition was limited to the return of all the territories occupied in the Six Day War. A large majority of the Jewish public (two thirds in 2012) believed that their objective was to conquer Israel. Forty-five percent of the Jewish public expressed the belief that the Arabs’ objective was not only to conquer Israel, but also to destroy a large portion of the Jewish population in Israel. It appears that fear of an Arab commitment to destroy Israel “in stages” is still rooted in Israeli consciousness.
In the absence of a permanent agreement (a possibility that is much discussed in Israeli public discourse), one possible result of the negotiations is an interim agreement, in which a Palestinian state would be established within temporary borders. Another possibility – whether as a result of negotiations or without them – is a unilateral Israeli measure. It can be assumed that public opinion toward these alternatives will be determined by the substance and scope of the arrangement, and according to the degree of security that it offers Israeli citizens. Various interim arrangements can be envisioned that could win public support. According to the public opinion survey data, however, an interim settlement or unilateral measure involving the removal of Jewish settlements is likely to encounter major opposition in public opinion. There is some willingness to accept removal of certain settlements as part of a permanent agreement – only 37 percent of the respondents in 2012 answered, “Settlements should never be removed under any circumstances.” When the same question is asked in the context of “a partial agreement,” 54 percent responded that settlements should never be removed, and 53 percent gave the same answer in the context of “Israel’s unilateral relocation of Jewish settlements in Judea and Samaria.”
Feasibility of Implementing an Agreement: The Legal Aspect
In early 1999, the Knesset enacted a law for the first time requiring a referendum in any contingency involving a political-territorial agreement under which Israeli law, jurisdiction, and administration will not apply to territory in which they applied when the said agreement was reached. The impetus for the law was the issue of the Golan Heights; it was designed to ensure that any agreement with Syria that ceded part of the Golan Heights would be subject to popular decision in a referendum. The law itself was short – four sections – and was mostly of a declaratory nature. The mechanism for conducting a referendum and all the issues involved in holding one were not spelled out. In this form, the law could not be implemented at all.
In 2010, during the term of the previous Knesset, the law was amended and greatly expanded. It essentially became a new and extremely detailed law that discusses at length the mechanism for conducting a referendum, and provides clear answers to almost all the issues connected to when a referendum is actually to be carried out. The 2010 amendment was related mainly to the Palestinian question, and was designed to ensure that any concession in Jerusalem would necessitate a decision by the people.
The discussion on a referendum returned to the headlines in the summer of 2013, following the renewal of talks between Israel and the Palestinians. The media debate created the impression that many questions about a referendum remained open, such as the wording of the question, how the voting would be conducted, eligibility for participation, and what majority would be required to approve the proposal. This impression, however, was completely groundless; all the questions raised have clear and unequivocal answers in the law.
The law stipulates that the government will not ratify an agreement that requires ratification, and will not sign an agreement that does not require approval, whereby the State of Israel’s laws, jurisdiction, and administration will not apply to territory in which the State of Israel’s law, jurisdiction, and administration currently apply, until the agreement is approved by a Knesset majority of 61 members, i.e., that 61 Knesset members support it, and it is approved in a referendum. This also applies to an agreement containing a future commitment, including a commitment contingent on conditions, and it likewise applies to any government decision in the matter that does not involve an agreement. Implementation of such a decision is contingent on Knesset approval and a referendum, as if an agreement were involved. The only exception to this is if the agreement or government decision was approved by a majority of 80 Knesset members.
The law also determines a detailed mechanism for carrying out a referendum. The question to be put in the referendum is worded precisely in Section 7 of the law: “Are you for or against the agreement between the State of Israel and (the names of the parties) that was approved by the Knesset on (date of Knesset approval)?” If a government decision is involved, rather than an agreement, the question will be worded as follows: “Are you for or against government decision number (number of the decision) approved by the Knesset on (date of Knesset approval)?” The only data missing in the wording of the question is the date of Knesset approval and the name of the party or parties with which the agreement was contracted or the number of the government decision. These details are entirely objective, and it is hard to imagine a dispute arising over their wording. Nevertheless, the lawmakers left nothing open to question. Section 7(B) of the law stipulates that the chairman of the Central Elections Committee, a judge serving on the Supreme Court, is the only person who will “fill out the missing particulars in the question.” The law also stipulates that “the voting slips in the referendum will bear the words ‘for’ or ‘against’” (section 7(C)).
In addition, the law sets forth clear rules for participation in a referendum and the majority required for approval of an agreement or government decision. Section 6 of the law states, “Any person who would be eligible to participate in the Knesset elections, were they to take place on the date of the referendum, is eligible to participate in the referendum.” Section 3 of the law states that the agreement or decision approved by the Knesset also requires approval in a referendum, “by a majority of the valid ballots cast by participants in the referendum.” In order to leave no room for doubt, the law states explicitly, “If the number of votes in favor is greater than the number of votes against, the agreement is approved in the referendum, or the decision is approved in the referendum, whichever applies” (section 7(D)). Finally, the law states that the referendum will take place in the same way as the Knesset elections are held, the Central Elections Committee will be responsible for holding the elections, and the provisions of the Knesset Elections Law, including the media campaigning, will apply to the referendum, with the necessary modifications (sections 9 and 10).
Once the law was enacted, the question of its validity arose. Some asserted that the law contradicted the Basic Law: The Knesset, because under the latter, the Knesset is the elected body of the State of Israel, and has the sole right to approve or not approve political agreements and government measures. A previous Supreme Court ruling established the principle that a basic law (which has the characteristics of a constitution) takes precedence over an ordinary law, and in the event of a contradiction between a basic law and an ordinary law, the usual rules for precedence of laws will not apply, and the basic law will take precedence. Some parties on the right expressed concern that parties on the left would file a petition to the Supreme Court against the law concerning a referendum, leading to its annulment. When the new government was formed in March 2013, the Bayit HaYehudi (Jewish Home) Party demanded that holding a referendum when concession of Israeli sovereign territory is involved be enacted in a basic law, protecting it from the challenge in the Supreme Court (if two basic laws contradict each other, the usual rules, namely that a specific law – and the Referendum Law is a specific law – will take precedence over a general law, and that a later law takes precedence over an earlier law, will apply). On July 29, 2013, the government submitted to the Knesset a Basic Law: Referendum bill. Like other basic laws, this law is a framework law whose purpose is to protect an ordinary law specifying the circumstances and mechanism for a referendum – the Administration of Rule and Justice Law (Revoking of Incidence of Law, Jurisdiction, and Administration) 1999 – against a challenge in the Supreme Court.
The basic law is a short law with five sections. It stipulates that a referendum will be held in the event that the government decides to ratify an agreement or sign an agreement, or makes a decision other than through an agreement, under which the law, jurisdiction, and administration of the State of Israel will no longer apply to any territory where it now does apply, including a future commitment or conditional commitment, and the agreement or decision has been approved by the Knesset, as required under the Referendum Law (section 1). Anyone eligible to participate in the Knesset elections, were they to take place on the referendum date, is also eligible to participate in the referendum (section 2). The legal provisions concerning Knesset elections will apply to the holding of a referendum, with the necessary changes (section 3). Emergency regulations cannot change or temporarily invalidate this basic law (section 4). This basic law cannot be changed other than by another basic law passed by a majority of Knesset members (section 5). The bill was approved in its first reading on July 31, 2013, the last day of the Knesset session, and was sent to committee to prepare it for its second and third readings. It can be assumed that the proposed basic law will be passed in the first months of 2014.
The main problem, which may well became an important issue in Israeli public discourse in 2014, is that these laws apply only to a case in which a ceding of Israeli sovereign territory is proposed, i.e., the entire territory of the State of Israel on June 5, 1967, the entire territory of united Jerusalem (all 126 square km), and the entire area of the Golan Heights. An agreement that includes withdrawal from all of Judea and Samaria, the removal of all the Jewish settlements in the region (about 350,000 people), and the transfer of the entire territory to Palestinian sovereignty does not require a referendum. Such an agreement is not on the agenda, but this means that constitutionally, any agreement in Judea and Samaria, including an interim agreement or a unilateral withdrawal, however limited or broad in scope, does not require approval in a referendum or approval by a Knesset majority of 61; an ordinary Knesset majority (even a majority of one in the absence of the majority of the entire Knesset) is sufficient.
With the renewal of the negotiations with the Palestinians, parties on the right (HaBayit HaYehudi, Yisrael Beteinu, and the right wing of the Likud) have renewed their demand that any agreement in Judea and Samaria involving the ceding of territory, not to mention the removal of Jewish settlements, be brought to the people for approval in a referendum. Prime Minister Benjamin Netanyahu has spoken on various occasions in favor of this idea. The problem is that it is very difficult to put such a commitment into legislation. The advantage of the existing legislation is that Israeli sovereign territory is clearly defined – “territory to which the law, jurisdiction, and administration of the State of Israel apply” – and is therefore not subject to dispute. Where the territories of Judea and Samaria are concerned, however, it is very difficult to define what exactly requires approval in a referendum. It is difficult to imagine a situation in which every removal of an unauthorized outpost, demolition of a house, or removal of a group of houses in a given settlement, or a change in IDF deployment on the West Bank, even if it involves the transfer of territory from Area B or C to the Palestinian Authority, will require a referendum.
The right, however, is not making such a far reaching demand. They want every agreement or interim agreement or unilateral measure involving a significant withdrawal from Judea and Samaria, not to mention a substantial removal of settlements, to be contingent on approval by an absolute Knesset majority and in a referendum. The problem is that it is very difficult to define “significant withdrawal” in legal and legislative terms. It is possible that instead of legislation, the right will settle for an explicit and public commitment from the prime minister, although the rule “whoever can forbid can also permit” would apply in this case, not to mention the fact that such a commitment is likely to be subject to a number of different interpretations. This subject is therefore expected to arise in the framework of the committee discussions on the basic law in preparation for its second and third readings. In any case, it is difficult to imagine a situation in which the government would be able to carry out a massive removal of Jewish settlements as part of separation from the Palestinians without support for it from a decision by the people in one form or another. Carrying out a large scale measure in this direction is liable to cause a deep personal, psychological, social, and national crisis among Israel’s Jewish population.
The question is, therefore, whether it is possible to create a mechanism for intra-society dialogue, because even if it does not prevent the rift, it will at least temper its severity. The attempts to deal with the challenge of internal dialogue in order to minimize the trauma expected to accompany separation from the Palestinians have hitherto come mainly from civil society and the third sector, and have been initiated by the government only in a few cases.
In 2010, during the term of the previous Knesset, the law was amended and greatly expanded. It essentially became a new and extremely detailed law that discusses at length the mechanism for conducting a referendum, and provides clear answers to almost all the issues connected to when a referendum is actually to be carried out. The 2010 amendment was related mainly to the Palestinian question, and was designed to ensure that any concession in Jerusalem would necessitate a decision by the people.
The discussion on a referendum returned to the headlines in the summer of 2013, following the renewal of talks between Israel and the Palestinians. The media debate created the impression that many questions about a referendum remained open, such as the wording of the question, how the voting would be conducted, eligibility for participation, and what majority would be required to approve the proposal. This impression, however, was completely groundless; all the questions raised have clear and unequivocal answers in the law.
The law stipulates that the government will not ratify an agreement that requires ratification, and will not sign an agreement that does not require approval, whereby the State of Israel’s laws, jurisdiction, and administration will not apply to territory in which the State of Israel’s law, jurisdiction, and administration currently apply, until the agreement is approved by a Knesset majority of 61 members, i.e., that 61 Knesset members support it, and it is approved in a referendum. This also applies to an agreement containing a future commitment, including a commitment contingent on conditions, and it likewise applies to any government decision in the matter that does not involve an agreement. Implementation of such a decision is contingent on Knesset approval and a referendum, as if an agreement were involved. The only exception to this is if the agreement or government decision was approved by a majority of 80 Knesset members.
The law also determines a detailed mechanism for carrying out a referendum. The question to be put in the referendum is worded precisely in Section 7 of the law: “Are you for or against the agreement between the State of Israel and (the names of the parties) that was approved by the Knesset on (date of Knesset approval)?” If a government decision is involved, rather than an agreement, the question will be worded as follows: “Are you for or against government decision number (number of the decision) approved by the Knesset on (date of Knesset approval)?” The only data missing in the wording of the question is the date of Knesset approval and the name of the party or parties with which the agreement was contracted or the number of the government decision. These details are entirely objective, and it is hard to imagine a dispute arising over their wording. Nevertheless, the lawmakers left nothing open to question. Section 7(B) of the law stipulates that the chairman of the Central Elections Committee, a judge serving on the Supreme Court, is the only person who will “fill out the missing particulars in the question.” The law also stipulates that “the voting slips in the referendum will bear the words ‘for’ or ‘against’” (section 7(C)).
In addition, the law sets forth clear rules for participation in a referendum and the majority required for approval of an agreement or government decision. Section 6 of the law states, “Any person who would be eligible to participate in the Knesset elections, were they to take place on the date of the referendum, is eligible to participate in the referendum.” Section 3 of the law states that the agreement or decision approved by the Knesset also requires approval in a referendum, “by a majority of the valid ballots cast by participants in the referendum.” In order to leave no room for doubt, the law states explicitly, “If the number of votes in favor is greater than the number of votes against, the agreement is approved in the referendum, or the decision is approved in the referendum, whichever applies” (section 7(D)). Finally, the law states that the referendum will take place in the same way as the Knesset elections are held, the Central Elections Committee will be responsible for holding the elections, and the provisions of the Knesset Elections Law, including the media campaigning, will apply to the referendum, with the necessary modifications (sections 9 and 10).
Once the law was enacted, the question of its validity arose. Some asserted that the law contradicted the Basic Law: The Knesset, because under the latter, the Knesset is the elected body of the State of Israel, and has the sole right to approve or not approve political agreements and government measures. A previous Supreme Court ruling established the principle that a basic law (which has the characteristics of a constitution) takes precedence over an ordinary law, and in the event of a contradiction between a basic law and an ordinary law, the usual rules for precedence of laws will not apply, and the basic law will take precedence. Some parties on the right expressed concern that parties on the left would file a petition to the Supreme Court against the law concerning a referendum, leading to its annulment. When the new government was formed in March 2013, the Bayit HaYehudi (Jewish Home) Party demanded that holding a referendum when concession of Israeli sovereign territory is involved be enacted in a basic law, protecting it from the challenge in the Supreme Court (if two basic laws contradict each other, the usual rules, namely that a specific law – and the Referendum Law is a specific law – will take precedence over a general law, and that a later law takes precedence over an earlier law, will apply). On July 29, 2013, the government submitted to the Knesset a Basic Law: Referendum bill. Like other basic laws, this law is a framework law whose purpose is to protect an ordinary law specifying the circumstances and mechanism for a referendum – the Administration of Rule and Justice Law (Revoking of Incidence of Law, Jurisdiction, and Administration) 1999 – against a challenge in the Supreme Court.
The basic law is a short law with five sections. It stipulates that a referendum will be held in the event that the government decides to ratify an agreement or sign an agreement, or makes a decision other than through an agreement, under which the law, jurisdiction, and administration of the State of Israel will no longer apply to any territory where it now does apply, including a future commitment or conditional commitment, and the agreement or decision has been approved by the Knesset, as required under the Referendum Law (section 1). Anyone eligible to participate in the Knesset elections, were they to take place on the referendum date, is also eligible to participate in the referendum (section 2). The legal provisions concerning Knesset elections will apply to the holding of a referendum, with the necessary changes (section 3). Emergency regulations cannot change or temporarily invalidate this basic law (section 4). This basic law cannot be changed other than by another basic law passed by a majority of Knesset members (section 5). The bill was approved in its first reading on July 31, 2013, the last day of the Knesset session, and was sent to committee to prepare it for its second and third readings. It can be assumed that the proposed basic law will be passed in the first months of 2014.
The main problem, which may well became an important issue in Israeli public discourse in 2014, is that these laws apply only to a case in which a ceding of Israeli sovereign territory is proposed, i.e., the entire territory of the State of Israel on June 5, 1967, the entire territory of united Jerusalem (all 126 square km), and the entire area of the Golan Heights. An agreement that includes withdrawal from all of Judea and Samaria, the removal of all the Jewish settlements in the region (about 350,000 people), and the transfer of the entire territory to Palestinian sovereignty does not require a referendum. Such an agreement is not on the agenda, but this means that constitutionally, any agreement in Judea and Samaria, including an interim agreement or a unilateral withdrawal, however limited or broad in scope, does not require approval in a referendum or approval by a Knesset majority of 61; an ordinary Knesset majority (even a majority of one in the absence of the majority of the entire Knesset) is sufficient.
With the renewal of the negotiations with the Palestinians, parties on the right (HaBayit HaYehudi, Yisrael Beteinu, and the right wing of the Likud) have renewed their demand that any agreement in Judea and Samaria involving the ceding of territory, not to mention the removal of Jewish settlements, be brought to the people for approval in a referendum. Prime Minister Benjamin Netanyahu has spoken on various occasions in favor of this idea. The problem is that it is very difficult to put such a commitment into legislation. The advantage of the existing legislation is that Israeli sovereign territory is clearly defined – “territory to which the law, jurisdiction, and administration of the State of Israel apply” – and is therefore not subject to dispute. Where the territories of Judea and Samaria are concerned, however, it is very difficult to define what exactly requires approval in a referendum. It is difficult to imagine a situation in which every removal of an unauthorized outpost, demolition of a house, or removal of a group of houses in a given settlement, or a change in IDF deployment on the West Bank, even if it involves the transfer of territory from Area B or C to the Palestinian Authority, will require a referendum.
The right, however, is not making such a far reaching demand. They want every agreement or interim agreement or unilateral measure involving a significant withdrawal from Judea and Samaria, not to mention a substantial removal of settlements, to be contingent on approval by an absolute Knesset majority and in a referendum. The problem is that it is very difficult to define “significant withdrawal” in legal and legislative terms. It is possible that instead of legislation, the right will settle for an explicit and public commitment from the prime minister, although the rule “whoever can forbid can also permit” would apply in this case, not to mention the fact that such a commitment is likely to be subject to a number of different interpretations. This subject is therefore expected to arise in the framework of the committee discussions on the basic law in preparation for its second and third readings. In any case, it is difficult to imagine a situation in which the government would be able to carry out a massive removal of Jewish settlements as part of separation from the Palestinians without support for it from a decision by the people in one form or another. Carrying out a large scale measure in this direction is liable to cause a deep personal, psychological, social, and national crisis among Israel’s Jewish population.
The question is, therefore, whether it is possible to create a mechanism for intra-society dialogue, because even if it does not prevent the rift, it will at least temper its severity. The attempts to deal with the challenge of internal dialogue in order to minimize the trauma expected to accompany separation from the Palestinians have hitherto come mainly from civil society and the third sector, and have been initiated by the government only in a few cases.
The Path to National Consensus
The rift and alienation between the government headed by Ariel Sharon and the Israelis living in Judea and Samaria during the 18 months preceding the removal of the Jewish settlements from the Gaza Strip and northern Samaria in the summer of 2005 sharpened the differences in political position between both those who were evacuated and those who supported the disengagement. Those removed from their homes regarded the measure as an act of destruction and expulsion, while those who supported the measure regarded it as a proper strategic decision by a responsible government. The absence of constructive dialogue before the removal of the Jewish settlements also had severe long term consequences. Former Vice President of the Supreme Court retired Judge Eliyahu Matza, who headed the commission that investigated the measures taken before the disengagement, emphasized conclusions concerning “the way preparations should be made for different possible scenarios that Israel is likely to deal with in the future, including removal of a large group of citizens due to an event making this necessary for any reason whatsoever.” Thus a discussion in Israel’s internal arena in the context of possible future independent steps that will be accompanied by the removal of Jewish settlements from the territories is most appropriate.
In 2000, when Israeli-Palestinian negotiations on a permanent agreement were underway, representatives of Prime Minister Barak were in ongoing contact with leaders of the Jewish settlements in Judea and Samaria. Tours and meetings with the Jews living there yielded insights that found their way to the staff work of the peace administration, and even to the negotiating table. Nothing leaked, and relationships of trust were created.
Professor Robert Mnookin, head of the negotiations program at Harvard Law School, has also recognized the need to create an internal consensus in Israeli society. In 2002, he initiated a dialogue in Israel under his direction between residents and non-residents of the settlements. Mnookin held several rounds of talks, which began before Ariel Sharon’s speech in Herzliya announcing his intention to remove Jewish settlements, and ended shortly before the disengagement itself. During the dialogue, the participants tried to reach an understanding concerning the terms for achieving broad legitimacy for the removal. At the end of the talks, it appeared that initial agreement had been attained whereby in any future removal of Jewish settlements through a unilateral decision by Israel, the condition for implementing the removal would be the support of a majority in a referendum. After the disengagement, several leaders of the evacuated Jewish settlements admitted that the insights achieved in these meetings had deeply affected them, and as a result, they in turn convinced settlement residents to refrain from violent opposition to the removal, as indeed happened.
Since any plan for “two states for two peoples” – negotiated or unilateral – is likely to require the removal of Jewish settlements, the government should prepare for the possibility that the residents of these settlements will be called to return to whatever Israeli borders are drawn. In order to prevent an internal conflagration, the government should seriously consider changing the discourse with members of the Jewish settlement community, in order to broaden public support for a two-state solution, to present the removal as such that it is not perceived as a disavowal of the Jewish settlements in Judea and Samaria and disregard of their feelings, and perhaps also to justify their removal by force if necessary – in the hope that the dialogue, and the mutual understanding achieved during it, will make it less probable that the situation will escalate to such a contingency.
For the full Article, as published on The Institute for National Security Studies - Click here
In 2000, when Israeli-Palestinian negotiations on a permanent agreement were underway, representatives of Prime Minister Barak were in ongoing contact with leaders of the Jewish settlements in Judea and Samaria. Tours and meetings with the Jews living there yielded insights that found their way to the staff work of the peace administration, and even to the negotiating table. Nothing leaked, and relationships of trust were created.
Professor Robert Mnookin, head of the negotiations program at Harvard Law School, has also recognized the need to create an internal consensus in Israeli society. In 2002, he initiated a dialogue in Israel under his direction between residents and non-residents of the settlements. Mnookin held several rounds of talks, which began before Ariel Sharon’s speech in Herzliya announcing his intention to remove Jewish settlements, and ended shortly before the disengagement itself. During the dialogue, the participants tried to reach an understanding concerning the terms for achieving broad legitimacy for the removal. At the end of the talks, it appeared that initial agreement had been attained whereby in any future removal of Jewish settlements through a unilateral decision by Israel, the condition for implementing the removal would be the support of a majority in a referendum. After the disengagement, several leaders of the evacuated Jewish settlements admitted that the insights achieved in these meetings had deeply affected them, and as a result, they in turn convinced settlement residents to refrain from violent opposition to the removal, as indeed happened.
Since any plan for “two states for two peoples” – negotiated or unilateral – is likely to require the removal of Jewish settlements, the government should prepare for the possibility that the residents of these settlements will be called to return to whatever Israeli borders are drawn. In order to prevent an internal conflagration, the government should seriously consider changing the discourse with members of the Jewish settlement community, in order to broaden public support for a two-state solution, to present the removal as such that it is not perceived as a disavowal of the Jewish settlements in Judea and Samaria and disregard of their feelings, and perhaps also to justify their removal by force if necessary – in the hope that the dialogue, and the mutual understanding achieved during it, will make it less probable that the situation will escalate to such a contingency.
For the full Article, as published on The Institute for National Security Studies - Click here