2.1 The emergence of settler-colonial studies

Settler-colonialism has emerged as a new field of study in the past four decades. Many studies, from a variety of disciplines, focus on settler-colonialism as a distinct form of colonialism. This area of study emerged from the realisation that colonialism has many strands, and that the types of colonies differ according to a number of factors (Fieldhouse, Reference Fieldhouse1967). While some colonies were colonies of ‘occupation’, others were colonies of settlement. Settlement colonies, which Feildhouse classified as plantation colonies, mixed colonies or pure colonies are ‘characterized by a significant and permanent – or at least long-lasting – population of Europeans' (Fredrickson, Reference Fredrickson1988, p. 219). Settlers in such colonies ‘had some expectation of transplanting “civilization” (basic aspects of the way of life that they had left behind in their countries of origin) to the new environment’ (Fredrickson, Reference Fredrickson1988, p. 219).

Settlement colonies share many features with other forms of colonialism, but they have their own dynamics and unique aspects that call for studying settler-colonialism as a distinct field of inquiry. In settler-colonies, settlers come with the intention to stay (Veracini, Reference Veracini2010, p. 53). They form societies distinct from the native population and seek to control land and resources and establish their own economy and modes of governance. Thus, as Caroline Elkins and Susan Pederson argue, settler-colonialism is marked by ‘a particular structure of privilege’ (Elkins and Pederson, Reference Elkins, Pederson, Elkins and Pederson2005, p. 4). The privilege is expressed in deep and pervasive inequalities between the settler and indigenous populations. Such divisions are usually ‘built into the economy, the political system, and the law’ (Elkins and Pederson, Reference Elkins, Pederson, Elkins and Pederson2005, p. 4).

Land plays an important role in settler-colonialism. As Patrick Wolfe explains,

The logic of elimination does not necessarily mean actual physical or violent elimination. Wolfe sees it as having positive and negative dimensions: ‘[n]egatively, it strives for the dissolution of native societies. Positively, it erects a new colonial society on the expropriated land base’ (Wolfe, Reference Wolfe2006, p. 388). Highlighting that it is a structure and not an event, Wolfe emphasises that, in its positive dimension, ‘elimination is an organizing principle of settler-colonial society rather than a one-off (and superseded) occurrence’ (Wolfe, Reference Wolfe2006, p. 388). It could be pursued through a range of practices that could include actual physical elimination, displacement or assimilation, which targets the cultural identity, heritage and institutions of the indigenous population.

2.2 Israel as a settler-colonial state

As part of the development of settler-colonialism as a discipline, many writers argue that the Zionist colonisation project is a form of settler-colonialism. The scholarship on the issue started as early as the 1960s (Sayeg, Reference Sayeg1965; Trabulsi, Reference Trabulsi1969) and developed throughout the 1970s and 1980s with significant contributions by Maxime Rodinson (Reference Rodinson1973), Edward Said (Reference Said1979) and Elia Zureik (Reference Zureik1979). These authors highlighted the fact that the Zionist movement started in Europe with the majority of the Israeli society having been recent immigrants from mostly European states. They also emphasised features that are characteristic of settler societies such as the effort to control the land at the price of dispossessing and displacing the native population, deep antagonism and conflict with the native population, and separation between the settler society and the native society. In 1989, the sociologist Gershon Shafir (Reference Shafir1989) published a book that used comparative settler-colonialism to analyse important historical events that predated the establishment of Israel and had significant implications for the formation of the Israeli state and society. This study linked state formation and some social and political trends to settler-colonialism.

The use of settler-colonialism as an analytical framework has intensified in the past decade, and a substantial literature on the issue has emerged with academics from a variety of disciplines examining a diverse range of questions through the lens of Israeli settler-colonialism. The studies cover almost the full spectrum of the social sciences and the humanities, including history, sociology, anthropology, gender and women studies, religion, sexuality studies, literature, geography and citizenship studies (e.g. Piterberg, Reference Piterberg2008; Robinson, Reference Robinson2013; Shafir and Peled, Reference Shafir and Peled2004; Shalhoub-Kevorkian, Reference Shalhoub-Kevorkian2015; Rouhana and Sabbagh-Khoury, Reference Rouhana and Sabbagh-Khoury2015; Amara et al., Reference Amara, Abu-Saad and Yiftachel2013; Morgensen, Reference Morgensen2012; Masalha, Reference Masalha2013). On the other hand, this perspective has been rejected by other academics that highlight the historical, cultural and religious ties between the Jewish people and the region. They argue that Jewish settlement in Palestine cannot be seen as colonialism, since many Jews view it as their ancestral land. Some writers distinguish Zionist colonisation from other forms of colonisation, arguing that the Zionist immigrants were not sent by a colonial power as in, for example, North America or Australia (Dershowitz, Reference Dershowitz2003; Frilling, Reference Frilling2003; Rubenstein and Yakobson, Reference Rubenstein and Yakobson2009; Aaronsohn, Reference Aaronsohn1996).

Despite the opposing views, settler-colonialism provides a useful analytical tool for understanding certain attitudes and trends within the state and society. Settler-colonial states differ in a number of respects from the nation-state model that is presented by authors such as Gavison (Reference Gavison2002), Rubenstein and Yakobson (Reference Rubenstein and Yakobson2009), which is mostly based on east and central European states where the hegemony of the dominant national group is often presented as an inevitable and justified outcome of national self-determination of a specific national group. Settler states on the other hand were created as a result of settler-colonialism and, as such, many features of settler-colonialism such as the political domination over the native population and the need to control the land become central themes that define the relationship with the native population. As Wolfe notes in the case of Australia, ‘[t]he determination “settler-colonial state” is Australian society's primary structural characteristic rather than merely a statement about its origins' (Wolfe, Reference Wolfe1999, p. 163). The notion that settler-colonialism does not ‘end’ with the creation of the settler state, but rather becomes one of its defining feature, is also shared by Elkins and Pederson (Reference Elkins, Pederson, Elkins and Pederson2005, p. 3). As such, the political domination, the structure of privilege and Wolfe's logic of elimination are carried on into the settler state.

In this paper, I do not aim to prove that settler-colonialism applies to Israel, but rather, relying on the considerable academic literature on the topic, I take this as a premise. Of course, as in other cases, there are differences between settler-colonialism in Israel and other settler-colonial situations. For example, Israel has a significant proportion of the settler population who are non-European immigrants from Arab countries. Usually known as Mizrahim, this group was culturally close to the native population at the time of the migration. Nevertheless, emphasising the religious identity of the group, the founding elites of the state thought of this group as part of the settler group, and it served the role of bolstering the demographic preponderance of the settler nation (Shafir and Peled, Reference Shafir and Peled2004). As in other settler-colonial situations, diversity and differences among the settler population did not blur the settler-native distinction (Wolfe, Reference Wolfe1994, p. 94). This highlights a distinct feature of settler-colonialism in Israel but does not negate it; on the contrary, observing that the Zionist logic of elimination is more exclusive than in Australia or the US, Wolfe argues that ‘Zionist policy in Palestine constituted an intensification of, rather than a departure from, settler-colonialism’ (Wolfe, Reference Wolfe2012, p. 136).

2.3 Settler-colonialism and the law: tools of analysis

Wolfe's logic of elimination provides a powerful analytical tool to examine how settler-colonialism shapes the constitutional order. The other analytical tool that I adopt is Anthony Anghie's ‘dynamic of difference’. In exploring the development of the concept of sovereignty in international law, Anghie focuses on colonialism and its underlying logic. He situates the ‘civilising mission’ at the centre of the colonial project, arguing that it has provided the intellectual justification for ‘colonialism as a means of redeeming the backward, aberrant, violent, oppressed, undeveloped people of the non-European world by incorporating them into the universal civilisation of Europe’ (Anghie, Reference Anghie2004, p. 3). This view highlights the differences between the European and the non-European peoples, casts the latter as uncivilised and backwards, and justifies the use of law to ‘bridge’ this gap. Anghie calls this ‘endless process of creating a gap between two cultures, demarcating one as “universal” and civilized and the other as “particular” and uncivilized, and seeking to bridge the gap by developing techniques to normalize the aberrant society’ the dynamic of difference (Anghie, Reference Anghie2004, p. 3). In this context, ‘legal doctrines play the crucial role of identifying the other – and this has the effect of expelling the other from the realm of law – and then proceeding to develop the doctrines necessary to suppress, transform, redeem the other’ (Anghie, Reference Anghie and Orford2006, p. 394).

Anghie traces the operation of the dynamic of difference back to the colonial encounters and shows how it has animated the development of international law since then, and has been reproduced in dealing with colonised people and post-colonial states. Based on this dynamic of difference, colonised people were deprived of access to sovereignty, for this was the exclusive domain of ‘civilised’ nations. It was used in the nineteenth century to justify the dispossession of the indigenous population in North America and the colonisation of significant parts of Asia and Africa. It animated the Mandate system created by the League of Nations and later on, through the idea of international development, it justified the imposition of the Bretton-Woods institutions, and most recently the ‘War on Terror’.

3.1 The positive dimension of settler-colonialism: erecting the settler nation

The Declaration was a momentous event for the settler society. It marked its transformation from a settler community under British tutelage into a collective of citizens in a state. It created a ‘we the people’ moment. Who was the ‘we’ in the Declaration? In the declaratory paragraphs, after affirming ‘the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State’ (para. 10), the Declaration went on to state that:

‘We’ refers here to the members of the People's Council representing ‘the Jewish Community of Eretz-Israel’ and the Zionist movement. But this collective, this ‘we’, is not just particular in the religious/ethnic lines of inclusion; it is also particular in that it mostly comprises settlers who joined a collective and a political movement that aimed at creating a state that is purely for the settler community. The settler ethos could be seen clearly throughout the Declaration, but nowhere does this ethos come to life so much as in the following paragraph, where the Declaration describes the settlers and their deeds:

This paragraph glorifies the heroism of Jewish immigrants: not just simple immigrants, but ‘pioneers’, who came to the country despite the barriers, and who were very active and energetic in building the country (‘made deserts bloom’) and building their own community that has its own separate and distinct economy, culture and language (‘built villages and towns, and created a thriving community controlling its own economy and culture’). This immigration and settlement was not for the benefit of the settlers only. In the tradition of the civilising mission, the settlers also brought ‘the blessings of progress to all the country's inhabitants’. The motifs of immigration, settlement, building and benefits for the other ‘inhabitants’ reverberate throughout the Declaration.

3.2 The Declaration's colonial encounter

As a Declaration of the Jewish state, its main themes concerned the Jewish people. But the starting point of the Declaration was not the people, but the land. The opening paragraph emphasised that

After opening with the land, the Declaration moves on to chronicle historical events. The history here is not of the geographical area that the Declaration opened with, but of a trans-territorial Jewish people. It is described as a community trying to re-establish its state creating the impression that it seeks to do so on a vacant land. Not only is it vacant land, but ‘a desert’ that lacks civilisation, culture or progress. The land needs the settlers to settle on it and reverse its horrid conditions and ‘make the desert bloom’. As Orit Kamir observes, as a literary text, the Declaration empties the land from the majority of its inhabitants (the Palestinians) (Kamir, Reference Kamir1999). In essence, it paints a picture of the land as terra nullius. The negative dimension of Wolfe's understanding of settler-colonialism, the dissolution of the native society, is clear to see here. Having done that, the Declaration moves to the positive dimension and erects a settler-colonial society by admiring the pioneering settlers and their achievements as explained above.

But presenting the land as an empty desert did clash with the realities on the ground. The reality of the presence of a native majority that was resisting what it saw as an invasion was strong and could not be totally ignored, and it made its way into the Declaration, where its framers

The indigenous Palestinians, or ‘the Arab inhabitants of the State of Israel’, are not part of the history of the land, but are only part of the present, and mainly when they plunge into the last parts of the text in the form of assailants. And, when they do enter the text, they are presented as merely passive ‘inhabitants’, as opposed to the active Jewish pioneers who ‘made the desert bloom’.

This paragraph could also be read as an invitation to join the emerging state. Indeed, this oft-quoted paragraph is seen as one of the sources of equality in Israeli law, as it offers ‘full and equal citizenship’ (Adalah v. Minister of Religious Affairs, 2000; Ka'dan v. Land Administration of Israel, 2000). However, in addition to this appeal, this paragraph also creates, or at least reinforces, the conception of the emerging (Jewish) settler nation that has exclusive control over the state as a matter of law. It creates the dichotomy of the we/you, where ‘we’ are the (Jewish) sovereign people who, by virtue of this sovereignty, can offer ‘you’ – the ‘Other’ – citizenship and equality. This is not citizenship as of right based on habitual residence, nor is it citizenship based on a ‘natural and historic right’, similar to the rights mentioned in the Declaration as belonging to the Jewish people. It is citizenship that ‘we’, the civilised and cultured settler nation, will ‘give’ to ‘you’, the violent assailants who happen to be here, if you attain a level of civility and ‘preserve the peace’.

It is reasonable to view the invitation to join the state on the basis of equal citizenship as a sign of commitment to equality, as it is often presented (e.g. Adalah v. Minister of Religious Affairs, 2000; Ka'dan v. Land Administration of Israel, 2000; Rubenstein, Reference Rubenstein2000). This gesture, however, should be assessed against two important points. The first point is the composition of the population in the area that was assigned to the Jewish state according to the 1947 Partition Plan. According to the report of the United Nations Special Committee on Palestine (UNSCOP, 1947), 49.9 per cent of the population in the area designated for the Jewish state was Palestinian Arab in 1947 (United Nations Ad Hoc Committee on the Palestinian Question, 1947).Footnote ³ Thus, the Declaration does not include 49.9 per cent of the population, but invites them, after the fact and conditionally, to join as citizens. Those who are not part of the ‘we’ are a little less than the majority of the population, if not the majority. The second point is that, by the time the Declaration was made, about 300,000 Palestinians had been expelled or fled from the areas that were under the control of the embryonic state as part of a wider process of displacement (Morris, Reference Morris2004; Pappe, Reference Pappe2007). At the same time, the text of the Declaration was offering conditional citizenship and equal rights to the Palestinians, military and paramilitary groups that answered to the signers of the Declaration who were actively working on expelling them. About 85 per cent of the Palestinians who were in the areas that fell under Israeli control had been expelled or fled by the end of the war in 1949.

3.3 The legal status of the Declaration

Even though the Declaration is not applied directly by courts like Basic Laws – which have constitutional status – it is a relevant constitutional document, and has gained more prominence after the enactment of Basic Law: Human Dignity and Freedom and Basic Law: Freedom of Occupation. Both Basic Laws refer to the ‘spirit of the principles set forth in the Declaration’ as a reference point for upholding human rights. These principles include ‘freedom, justice and peace as envisaged by the prophets of Israel … complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex … freedom of religion, conscience, language, education and culture’ (para. 12).

But this rise of constitutional protection of rights is relatively recent. The universal rights and values mentioned in Declaration did not impose legal limits on the powers of the different branches of the state. The Supreme Court ruled, as early as 1948, that the Declaration is meant to announce the creation of the state as a matter of international law. While it does express ‘the people's vision and its “I believe”’ (Zeev v. Officer in Charge the Tel-Aviv Urban Area, 1948, p. 89), it is not a constitutional statute that regulates the validity of legislation. The status of the Declaration has evolved since then, and it is now considered to play a role in the process of interpretation of legislation (Rubenstein and Medina, Reference Rubenstein and Medina2005, p. 40). It is seen as ‘anchoring the basic principles of the regime’ and includes a number of principles that are foundational (Shakdi'el v. Minister of Religious Affairs, 1988, p. 275). Thus, based on the spirit of the Declaration, a number of rights and freedoms were recognised as part of Israeli law. However, these rights and principles were recognised in cases of judicial review of administrative actions only. Legislation was immune from judicial review based on the principles enshrined in the Declaration (Kol Ha'Am v. Minister of Interior, 1953; Kamir, Reference Kamir1999, p. 522).

The principles and values in the Declaration are not limited to the universal values. Many of the values are inherently connected to the settler nation. As former Chief Justice Aharon Barak says, the principles of the Declaration include ‘[t]he connection between the Land and the Jewish people, the right of the [Jewish] people over the Land, the revival of the Hebrew Language and the striving for peace’ (Barak, Reference Barak1994, p. 306). The Declaration therefore does not always serve as an interpretative tool for the promotion of human rights: at times, especially when the dominance of the settler nation and its underlying ideology are challenged, the Declaration also serves as a tool to deny them.

The prime example where the basic principles emanating from the Declaration were used to deny rights is the 1965 ruling in the case of Yerdor v. CEC (1965). In this case, the Supreme Court relied on the principles in the Declaration to affirm a decision by the Central Elections Committee (CEC) prohibiting candidates from participating in the general elections despite the absence of statutory authority for taking such action. The disqualified slate, known as ‘the Socialist List’, included members of the Palestinian Al-Ard organisation, which was declared an illegal organisation for sympathising with Arab nationalism and calling for a just solution to the Palestine problem based on self-determination for the Palestinian people. In his opinion, then Chief Justice Agranat stated that, in order to examine whether the CEC was authorised to bar Al-Ard’s participation, a number of constitutional facts should be emphasised. Quoting the Declaration, he stated that there is no doubt that

Based on this constitutional fact, Agranat concluded that the CEC was acting within its powers when it barred the slate from participating in the elections.

Even when the Declaration was cited as a normative source in recognising equal rights of the Palestinians citizens, as in the case of Ka'dan, a closer and more careful reading of the ruling and the context shows that it is in fact squarely within the settler-colonial framework. The Ka'dan ruling concerned a petition to the Supreme Court against the Israel Land Administration and the Jewish Agency for refusing to sell land in the town of Katzir (a town built on land expropriated by the state from other Palestinians) to a Palestinian citizen. The state justified the refusal, arguing that it was because the land was allocated to the Jewish Agency, which, beholden to Jews only, is justified in discriminating against Arab. The Court, using an antidiscrimination approach, decided that the values of the Jewish and democratic state do not justify discrimination against non-Jews.

In providing a deeper analysis of this case, Hassan Jabareen argues that the Court's approach to equality represents a new form of ‘Israeliness’ that is only future-oriented, which could include Palestinians, but this would be conditional upon assuming a new identity that would accept the ideological values of Zionism (Jabareen, Reference Jabareen, Levy and Weiss2002, p. 197). As Jabareen observes, the Court viewed the petitioners as individuals who do not challenge the Jewish identity of the state or the history of settlement. They are portrayed as agreeing with Zionist principles, even those that conflict with their interests.Footnote ⁴ Furthermore, they were not seen as an indigenous people with land claims, but merely belonging to a minority among the many minorities in Israel, with the only collective that amounts to a nation being the settler nation.Footnote ⁵ These observations situate the Ka'dan ruling as part of the settler-colonial process: while the negative aspect of (judicially) dissolving the native population and turning them into many minority groups that have no problem with the colonisation process is present, the positive dimension is also alive when the Court goes on to highlight the prominence of the new (Jewish) settler society. Indeed, Wolfe's observations about Mabo and Others v. Queensland (No. 2) (1992) apply here – the ruling in Mabo removed the doctrine of terra nullius at the point at which it had completed its historical task (Wolfe, Reference Wolfe1994, p. 122). Similarly, the Ka'dan ruling was needed to congeal and legitimate the earlier land expropriation that amounts to 70 per cent of the land that the Palestinians used to own (Abu Hussein and McKay, Reference Abu Hussein and Mckay2003, p. 7) and to grant the state, its colonisation efforts and its judicial system, ‘a façade of legitimacy’, as Baruch Kimmerling puts it (Reference Kimmerling2002, p. 1121).

4.1 Elimination by expulsion: the Nakba and its aftermath

Since the early years of the twentieth century, the leaders of the Zionist movement were preoccupied with what they called ‘the Arab Problem’ or ‘the Arab Question’. The problem was the existence of a large number of Palestinian Arabs, which would make the task of establishing a Jewish state – which was envisioned to have a Jewish majority – hard, if not impossible. Israel's founding Prime Minister, David Ben-Gurion, argued that the fact that more than 40 per cent of the population in the area allocated to the Jewish state under the 1947 plan were Arab ‘questions our ability to maintain Jewish sovereignty … . Only a state with at least 80 per cent Jews is a viable and stable state’ (Pappe, Reference Pappe2007, p. 48). The transfer of the Arab population was a central theme in the thinking about the ‘Arab question’. The idea can be traced back to the beginning of political Zionism in the late nineteenth century (Masalha, Reference Masalha1992), though it was discussed and took a more concrete shape in the 1930s and 1940s. This mindset, which is squarely within Wolfe's logic of elimination, was the prevailing mindset on the eve the war in 1948.

The skirmishes that started in December 1947 developed into a fully fledged war in May 1948. Between December 1947 and the end of the war in 1949, the overwhelming majority of the Palestinians living in the areas that became Israel fled or were expelled (Masalha, Reference Masalha1992; Morris, Reference Morris2004; Pappe, Reference Pappe2007; Shlaim, Reference Shlaim1995). This massive exodus reduced the number of Palestinians in Israeli-controlled areas by 80–85 per cent. The leadership of the new state saw this demographic shift as a major war gain (Morris, Reference Morris1993, p. 153) and approvingly described the exodus of the Palestinians as a great achievement and ‘a miracle’ (Morris, Reference Morris2004, p. 348). In addition to the expulsions, the state took a number of measures in order to block attempts to return and in order to make return unattractive, such as destroying the villages from which the refugees fled. Law played an important role in the process of preserving the ‘war gains’ and contributed to reducing the number of the Palestinians.

Citizenship was only regulated in 1952 with the enactment of the Citizenship Law 1952. But, even before it was enacted, Israel admitted hundreds of thousands of (Jewish) immigrants and, at the same time, continued to expel Palestinians. This was facilitated by conducting a census, and the enactment of a number of statutes that were meant to count and register the population. Essentially, these were the tools that aimed for completing the task of elimination by expulsion. During the war, even before the Israeli army had gained control over many parts of what became Israeli territory, the authorities were debating the best way to block the trickle of refugees attempting to return in order to ‘freeze’ the demographic picture then (Leibler and Breslau, Reference Leibler and Breslau2005, p. 891; Robinson, Reference Robinson2013, pp. 72–76). One of the ways to do so was to count and verify the identity of those who did not leave to make it easier to distinguish between returning refugees, who were designated as ‘illegal’ and Palestinians who did not leave, who were deemed ‘lawful’ (Leibler and Breslau, Reference Leibler and Breslau2005, p. 892). As in other colonial situations, the census also played a role in the creation and maintenance of different population categories, the effective surveillance of the population (mainly Palestinians) and facilitated devising methods for their control (Leibler, Reference Leibler, Zureik, Lyon and Abu Laban2011).

The registration of the inhabitants was done according to the Emergency Regulations (Registration of Inhabitants) 1948 and, after February 1949, according to the Inhabitants Registration Ordinance 1949. Residency, in the sense established by this ordinance, allowed the ‘legal’ residents to stay in the country. The officials of the Interior Ministry interpreted the provisions of the ordinance narrowly to exclude as many Palestinians as possible (Robinson, Reference Robinson2013). Many of the ‘illegal’ residents were expelled after large ‘sweeping’ campaigns by the Israeli authorities. The expulsions were tempered somewhat by petitions to the Supreme Court. The Court's approach, however, was not consistent and relied mainly on technicalities (Hofnung, Reference Hofnung1991, p. 144). The expulsion was facilitated further by the introduction of the Prohibition of Infiltration Ordinance 1954. In addition to expulsion, fatal force was used as a matter of policy in order to deter returning refugees. Morris observes that, by 1956, 2,700–5,000 refugees were killed trying to return (Morris, Reference Morris1993, pp. 125–133, 145–147).

4.2 Elimination by grant of citizenship

The Citizenship Law 1952 prescribed a number of ways to acquire citizenship. For Jews, it referred to the Law of Return 1950. Citizenship for this category was automatic. Acquisition of citizenship for non-Jews, mainly Palestinians, was granted based on residence. According to section 3, non-Jews who were residents of Palestine had to meet a number of conditions in order to obtain Israeli citizenship. They had to prove uninterrupted residency from May 1948 up to the day the Citizenship Law 1952 came into force (14 July 1952). While the law creates channels of inclusion and grants of citizenship, it is important to pay attention to the nuances to see the flip side of citizenship: for, when it defines who is included and how, law also defines who is excluded.

The Citizenship Law 1952 essentially deprived all of the Palestinian refugees from the right to citizenship. It gave the legal stamp of approval for the elimination by expulsion making sure that this elimination is not reversed. For those who were not expelled, the conditions of section 3 proved to be hard to meet for many. Because of the war situation and the arbitrary policies adopted since 1948, many did not meet the criteria. The result was that a significant number were not entitled to citizenship and had to naturalise (Robinson, Reference Robinson2013). This group also lost most of their property to the state because they were deemed ‘absentees’ according to the Absentee Property Law 1950, giving rise to the oxymoronic category of ‘present absentees’. Naturalisation was subject to the discretion of the Minister of Interior and was not a matter of right, and many remained stateless until the law was amended in 1980.

4.3 The negative and positive dimensions of settler-colonialism: the Law of Return and the settler society

The eliminatory effect of the Citizenship Law cannot be fully appreciated without considering the Law of Return 1950. The law, whose main section provides that ‘[E]very Jew has the right to ascend [immigrate] to the Country’, is seen as one of main expressions of the Jewishness of the state, in addition to being its main immigration law. The Supreme Court regards it as a constitutional ‘Basic Law in essence’, and see is as ‘the most fundamental of all laws’ (Toshbeim v. Minister of Interior, 2005, p. 733). The right is given to anyone who is Jewish, his/her children, grandchildren and their spouses. The right is almost absolute; there are only a few exceptions relating to public health and safety.

The Law of Return constitutes the cornerstone of the positive dimension of settler-colonialism, as it presents a unique and swift channel of gaining citizenship that is distinguishable from naturalisation, or citizenship by residence. It also distinguishes the Jewish citizens from other citizens in that it sees all Jews as one unit subject to one rule whatever their place of origin is. Thus, Jews who were citizens of Mandate Palestine prior to 1948 were deemed as ‘olim’ (ascenders – Jewish immigrants) according to section 4 of the law. This provision reflects the desire to eliminate any distinction between Jews who were born abroad and those born in Mandate Palestine/Israel. Despite the fact that section 4 no longer has any practical relevance because of changes introduced in 1980 (although it is still formally valid), it still carries symbolic and political significance. Barak, for example, cited section 4 to emphasise ‘the inclusive nature and broad conception of the Law of Return’ and that ‘“Aliya” is not a technical term. It is a social, value-laden, and national term’ (Toshbeim v. Minister of Interior, 2005, para. 23). In this sense, the Law of Return is the main factor in deciding the boundaries of the polity. The demographic impact of the Law of Return also highlights the positive dimension of Israeli settler-colonialism. In the years 1948–2011, more than three million people immigrated to Israel under the Law of Return, with (Jewish) immigration reaching 199,516 in 1990 (Statistical Abstract of Israel 2012, 2013, p. 232). Approximately 61 per cent of all citizens classified as ‘Jews and others’ (others being non-Jewish family members eligible for immigration under the law) are reported to have a place of origin other than Israel. About 30 per cent of ‘Jews and others’ were foreign-born in 2011. This figure was 64 per cent in the 1948 Statistical Abstract of Israel 2012 (2013, p. 160).

The population policies today still follow the main logic of elimination. The issue of demography is still at the heart of Israel's population policies. More restrictions are placed on the Palestinian citizens in Israel, mainly in the form of banning family reunification with other Palestinians, and more efforts are directed at increasing Jewish immigration (Masri, Reference Masri2013). These policies and the associated laws, which are central to Israeli settler-colonialism, are at the core of Israeli constitutionalism. For many, and indeed according to the Supreme Court, the Jewish majority is an essential component of Israel's definition as a Jewish state, and is seen as one of the foremost manifestations of the Jewishness of the state (Ben Shalom v. Central Elections Committee, 1989; CEC v. Tibi, 2003; Galon v. The Attorney General, 2012). The Court even intimated that demographic concerns (of the settler society) are appropriate considerations to take into account when devising policy and enacting legislation, even if they violate protected constitutional rights (Masri, Reference Masri2013).

5.1 Basic law: the Knesset and the dynamics of difference

In 1985, the Knesset enacted section 7A of Basic Law: The Knesset. This section was essentially the codification of the principle that was adopted in the Yerdor case (discussed in Section 3.3 above). As it stands today, section 7A bans the participation in elections of individuals and parties if their goals and actions, expressly or by implication, include ‘negation of the existence of the State of Israel as a Jewish and democratic state’ (section 7A(1)) or ‘incitement to racism’ (section 7A(2)) or ‘support for armed struggle by a hostile state or a terrorist organization against the State of Israel’ (section 7A(3)).

The Supreme Court has dealt with section 7A in a series of cases. The most elaborate judicial discussion of section 7A was in the Tibi case (2003). In this case, discussing the interpretation of section 7A, Barak highlighted the democratic features of the state such as periodical elections and fundamental human rights. In discussing the ‘Jewish’ element of the definition, he highlighted its components, which

Based on this interpretation, Barak ruled that, while the evidence against Azmi Bishara and the party he chaired – the National Democratic Assembly – did not meet the evidentiary threshold, Barak commented that Bishara's approach to the idea that Israel should be the state of all its citizens ‘comes close, in a dangerous manner, to the possibility that negates the existence of the State of Israel as a Jewish state’ (CEC v. Tibi, 2003, p. 43).

The Court, along with many academics, justified the restrictions of section 7A using the principle of ‘defensive democracy’ – the idea that democracy as a system of governance should have mechanisms to protect itself. This often means that anti-democratic forces should not be allowed to benefit from the right to participate in elections, since their goal is to eliminate democracy (Yerdor v. CEC, 1965; CEC v. Tibi, 2003; Rubenstein and Medina, Reference Rubenstein and Medina2005, p. 588). This is quite understandable when it comes to rejecting democracy or democratic principles such as equality or universal suffrage, but it becomes harder to justify when ‘defensive democracy’ is invoked to exclude parties that reject the Jewish definition of the state because of democratic and egalitarian principles. Nevertheless, the idea of ‘defensive democracy’ has become so deeply entrenched in legal and academic discourses that the Court and academics use it to justify arrangements such as section 7A.

It should be highlighted that, in virtually all cases other than the landmark 1965 Yerdor case, the Court allowed the candidacy to stand and the candidates or parties did participate. Section 7A imposes restrictions on political participation but does not inhibit it. Despite the success of the Court in tempering the impact of section 7A, it is hard to ignore its expressive role. Law has an expressive function: it expresses certain sentiments about social norms or phenomena. This is even more pronounced when it comes to constitutional law, which, in addition to it functional role, also reflects constitutional norms and a certain image of the political community. In this sense, section 7A makes statements about the undesirability of certain political beliefs. But more interesting for our purposes are the justifications that many mainstream constitutional law scholars provide for section 7A. Amnon Rubenstein and Barak Medina, for example, offer two understandings of ‘defensive democracy’. The first understanding entails the defence of a democratic regime from violent transformation (Rubenstein and Medina, Reference Rubenstein and Medina2005, p. 605). The second understanding takes into account features of democracy that need to be defended more broadly. Those include basic human rights including the right of the Jewish people to self-determination, which Rubenstein and Medina see as a precondition for the protection of the basic rights of the Jewish collective. They argue that rejecting the need for a Jewish majority or Jewish self-determination in the form of a state could result in endangering the lives of Jewish citizens, since this is the only possible way to ensure the security of Jews. They argue that other constitutional arrangements, such as a bi-national state that also gives expression to Palestinian identity, could result in ‘severe [violent] disturbances’ Rubenstein and Medina, Reference Rubenstein and Medina2005, p. 612). Thus a political party that aims to change the Jewish character of the state is seen as undemocratic because it disregards the wishes of the majority to define the state as Jewish (Rubenstein and Medina, Reference Rubenstein and Medina2005, p. 611); it is also seen as condoning violence.

Ruth Gavison provides a somewhat similar position. She would tolerate a party with a ‘preference’ to change the Jewish character of the state to a ‘state of all its citizens’ if that position is accompanied by a commitment to democracy and an acknowledgement that the majority does not accept such a demand (Gavison, Reference Gavison, Aviezer and Yedidiaa2007, pp. 165–167). But she thinks that candidates or parties should be banned if they assert ‘that the continuing existence of Israel as a Jewish nation-state is not legitimate and could not be reconciled with democracy and human rights’ (Gavison, Reference Gavison, Aviezer and Yedidiaa2007, p. 167) because such a position means a rejection of the will of the majority, and a willingness to turn to ‘foreign’ elements in order to change it. Gavison prefaces the discussion with a contextual comment on security and war, and it is clear that she equates the rejection of the Jewish definition of the state with some kind of a security threat (Gavison, Reference Gavison, Aviezer and Yedidiaa2007, p. 166). Echoes of this position linking could also be heard in the Yerdor decision. In his short opinion, Justice Sussman asserted that, for a party to be banned from the elections, its objectives should ‘seek to eliminate the state, to visit a holocaust upon the majority of its residents for whom it was created, and to join its [the state's] enemies’ (Yerdor v. CEC, 1965, p. 389). He even compared the situation to a situation where someone plans to get elected to the Knesset in order to hurl a hand grenade in its halls (Yerdor v. CEC, 1965, p. 390).

This justification that Rubenstein, Medina and Gavison provide for section 7A is one manifestation of the settler-colonial outlook. It reflects a position that sees equal (even if limited) manifestation of Palestinian self-determination as necessarily causing violence, and that sees a Jewish majority as necessary for security and even for democracy (Rubenstein and Medina, Reference Rubenstein and Medina2005, p. 626). This dichotomy that these authors create – of Jewish majority or self-determination/democracy vs. Palestinian majority or a bi-national state/violence – echoes dichotomies that were created during colonial encounters in the sixteenth and seventeenth centuries. What we see here is an intellectual exercise similar to Anghie's dynamic of difference: Jewish self-determination and dominance is seen as ‘universal’, ‘civilised’ and ‘liberal’. On the other hand, the native Palestinians demanding similar rights are portrayed as ‘particular’, ‘uncivilised’ and violent. Section 7A is therefore necessary to bridge this gap and normalise the ‘aberrant’ natives and protect the Jewish majority by limiting the right of the Palestinians to participate in elections if they demand rights similar to those reserved for the Jewish collective only. The ‘dynamic of difference’ is present in both the process of conceptualising the difference and the process of ‘filling the gap’.

5.2 Elimination through conformism

While the Court did play a role in tempering the impact of section 7A (Neiman v. Chairman of CEC, 1988; CEC v. Tibi, 2003), still the fact that, in almost every single election, at least one Palestinian group or candidate needs judicial intervention to stand in the elections serves to de-legitimise the candidates and the candidacy. More importantly, section 7A plays a role in the positive dimensions of settler-colonialism in that it helps to shape the society and provides a model of what assimilation in this context could be. Although section 7A does not necessarily block the access of Palestinian citizens to the Knesset, it does seek to block the access of ideas that actively seek to challenge the status quo based on universal values. What the section does, to put it in the words of former Chief Justice Meir Shamgar, is to ‘screen, in advance, what the image of the Knesset and its elected members will be after the elections’ (Mi'ari v. Speaker of the Knesset, 1987, p. 211). The goal of section 7A is to stop the natives from using electoral politics in order to challenge the dominance of the settler society and to create a new individual political actor with no claims that challenge the existing structure. This is essentially a form of assimilation by acquiescing to the status quo even if it is against the immediate interests of the native. To be clear, full assimilation is not really possible because of the more exclusive nature of Zionism that Wolfe highlights, but a form of conditional and limited inclusion is possible. Settler-colonialism in this sense allows incorporation that dissolves the native society into individuals or religious groups or clans, devoid of any uniting national consciousness. At the same time, this does not mean full assimilation in the dominant settler society especially that this society does not recognise an ‘Israeli nation’ (Tamarin v. State of Israel, 1972; Ornan v. Ministry of Interior, 2013). It means reshaping the indigenous society as a group of individuals at the margins of the settler society (Bishara, Reference Bishara2005).