[NOTE: I delivered this talk at a luncheon with Tal Becker as the other speaker at the Washington Institute for Near East Policy, March 16, 2010.]

In my remarks today I want to look at the evolution of the concept of Israel as a national home for the Jewish people and a ?Jewish state? in international law, then at Israel’s character as a Jewish state, and finally at the way in which the occupation negates that character. My broadest point is that at every level Israel’s status as a national home for the Jewish people and as a Jewish state is dependent on the creation of a Palestinian state to live alongside Israel in peace and security.

I. Israel as a Jewish state in international law

The Balfour Declaration of November 2, 1917 begins with the phrase, “His Majesty’s government view with favour the establishment in Palestine of a national home for the Jewish people?” There are at least two significant aspects to this language worth noting: the Declaration commits to “a national home for the Jewish people,” but not to “a Jewish state,” and to “a national home,” but not “the national home.” National home might be taken to imply state, but it might mean many other things as well. Many have noted the irony of no overt reference to the overwhelming majority of the population of Palestine, the Palestinian Arabs, in the Declaration, and the moral, political and legal difficulties attached to the United Kingdom making such a pledge regarding a territory over which it had, the time, no legal authority and in disregard of the wishes of its population. Nonetheless, the Declaration introduces the concept into international relations in a most decisive manner.

The text of the Mandate for Palestine adopted by the Council of the League of Nations on July 24, 1922 made the project a practical reality rather than simply a rhetorical position by holding that “the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting [The Balfour Declaration] into effect.” Article II repeats the language of the Declaration that, “The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.” Like the Declaration, the Mandate therefore set up a virtually impossible conundrum by pledging to establish a Jewish national home in Palestine, without specifying whether or not this would involve a Jewish state, and more importantly without violating the civil and religious rights of the Palestinian majority. Probably the only way to parse this in a manner that makes the language of the Mandate and the Declaration intelligible is to distinguish between civil and religious rights to be afforded to non-Jews (that is to say Palestinians) in Palestine on the one hand, and national political rights which are only mentioned in connection with Jews on the other hand. In other words, there does seem to have been a time at which, guided by British policy and interests, the international community, such as it was, regarded the Jewish national project in Palestine as legitimate and simply refrained from commenting on the Palestinian national project, unless to damn it by silence.

However, given the increasing assertion of Palestinian national identity and ambitions during the mandatory period, this willful blindness could not extend itself into international decision-making about the end of the Mandate, as it had at its beginning. Several proposals from the late 1930s, most notably the 1937 Peel Commission Report, suggested partition of Palestine between Jewish and Arab states. United Nations General Assembly Resolution 181 of November 29, 1947 called for the establishment of, “Independent Arab and Jewish States and the Special International Regime for the City of Jerusalem.” This partition resolution, along with its own unilateral Declaration of Independence that defines it as “a Jewish State in Eretz-Israel,” is generally regarded as the birth certificate of the Israeli state. Indeed, Israel’s admittance as a member state of the United Nations by UN General Assembly Resolution 273 (III), adopted on May 11, 1949, specifically referenced “its resolutions of 29 November 1947 [181] and 11 December 1948,” and a commitment to the implementation of those provisions.

The irony, of course, is that if the 1947 partition resolution was the primary international birth certificate for Israel, it must also be so for the yet to be established Palestinian state as well. The logic of partition cannot cut in one direction only. Indeed, the “land-for-peace” formula of UN Security Council Resolution 242 of 1967 and its numerous legal progeny is simply a logical extension of the fundamental attitude towards balancing Jewish and Arab rights in Palestine through sharing of the land between two equally sovereign and ethnically-defined entities. Therefore, Israel’s legal status internationally as a Jewish state depends on the eventual creation of a Palestinian state to complete the logic of its own creation. International legality on this question has been formulated such that neither Israel nor Palestine makes sense as a standalone, but represent two mutually dependent functions of the same equation.

II. Israel as a Jewish state

Israel, in many important respects plainly IS a Jewish state. First of all, it is a sovereign member state of the United Nations and therefore defines its own character. In negotiations with the Palestinians, it is this power and prerogative of self-definition that leaves many wondering what is the point of Prime Minister Netanyahu’s demand that Palestinians recognize Israel as, in his words, “the nation-state of the Jewish people.” While this issue is not new in Arab-Israeli negotiations, such formulations are both new and striking, and go far beyond mutual recognition of states and of rights of self-determination. From the Palestinian point of view, recognition of Israel and the realization of a conflict ending, two-state agreement that includes an end of all claims the parties may have on each other accomplishes everything substantive in this regard. Israel is free to define itself, just as Palestine will be. The question of the Jewish character of Israel was never raised and is not reflected in its peace treaties with Egypt or Jordan. It therefore seems odd and gratuitous to ask Palestinians to enter into the debate that rages, and will no doubt continue to rage, within Israel about the nature of the Israeli state and its “Jewish character.” It also raises the question of why Israel would cede to anyone else a role in defining its identity and character. It is extremely unusual, if not unprecedented, for states to demand and for other states to accept certain specific ethnic definitions or other characterizations in their diplomatic arrangements, which are almost always regarded as internal matters not subject to external approval or even comment.

When we speak of Israel as a Jewish state, what, after all, does this really mean? The most obvious and perhaps only consensus meaning is Israel has a majority ethnic group that considers itself, and is formally classified by the state, as Jewish, and that has the means of dominating state institutions and society. True enough there is a large Palestinian minority among Israel citizens, and they occupy a complicated relationship with Israel as a “Jewish state.” They enjoy many of the rights and prerogatives of citizenship, and yet are subject to some anomalous legalized discrimination that, while certainly not unique in the world today, is nonetheless unusual in its scope and severity, especially in the context of a minority large enough to comprise approximately 20% of the whole population. The role of the Palestinian citizens of Israel has been struggled with both by mainstream Jewish Israeli society on the one hand and by the Palestinian minority on the other hand since the founding of the state. However, in spite of a very problematic relationship between this large non-Jewish minority and the state itself, Israel’s status as a Jewish state I think plainly rests primarily on the fact that it has a substantial Jewish majority of more than 75 percent.

There are, of course, other ways in which Israel has expressed itself as a Jewish state. There are the various quasi-governmental entities that enjoy a cooperative relationship with the Israeli state, but that purport to act in the name of world Jewry. There are also numerous legal and administrative Israeli provisions that reflect a special relationship between the state and Jewish religious institutions, heritage and sentiments. It appears that only a minority of Jewish Israelis are interested in a systematic expansion of the role of religious institutions in state life, and Israel is likely to remain largely secular for the foreseeable future. However, as with many other Middle Eastern societies there has been a rise in religious sentiments and an increasingly empowered religious right in Israeli political life.

As I noted already, there is a robust debate within Israeli society over the nature and validity of the “Jewish and democratic character” of Israel, and the challenges that this identity poses for the country to become also “a state of all its citizens,” or at least a state that serves all of its citizens equally as opposed to one that reflects indefensible ethnic or religious privilege. Many similar issues are dealt with by states around the world that have to contend with majority sentiments versus minority rights and contentious relationships between religious and secular institutions. Any future Palestinian state would almost certainly face analogous challenges. Indeed, every state in the Middle East contends with them to some extent or another. Yet since many Jewish Israelis cannot agree on the nature of the “Jewish character” of the Israeli state, and because this question is entirely extraneous to the question of the establishment of peace and normal diplomatic relations between Israel and a Palestinian state, it seems difficult to understand the impulse to bring this issue into the negotiations.

What, precisely, would Palestinians be acknowledging if they formally recognized Israel as a “Jewish state” that would not be accomplished if they merely recognize it as presently constituted and self-defined? Indeed Palestinians have already done so on numerous occasions, most notably PLO Chairman Yasser Arafat’s September 9, 1993 letter to Prime Minister Rabin in which he unambiguously stated, “The PLO recognizes the right of the State of Israel to exist in peace and security.” What can possibly be accomplished by this new and startling formulation about recognition of ?the nation-state of the Jewish people? other than adding yet another wrinkle of eminently avoidable complication?

Palestinians are concerned that if they were to explicitly recognize Israel as, in Prime Minister Netanyahu’s language, “the nation-state of the Jewish people,” they might be perceived as endorsing measures that discriminate against the Palestinian citizens of Israel. The Palestinian leadership sees these issues as an internal matter to be determined by Jewish and Arab Israelis through the political and civic processes within Israel, not as a matter of negotiations between Israel and the PLO. Moreover, Palestinians and many others view this demand as an effort to preempt the refugee issue, which is a core permanent status negotiating issue. Palestinian negotiators have long accepted that major compromises are required on their part regarding refugees and the right of return. This is probably the most politically complicated aspect of permanent status from the Palestinian point of view. Palestinians and peace require significant reciprocal Israeli steps on the most politically sensitive issues from the Israeli perspective, particularly regarding Jerusalem. When former Prime Minister Olmert first raised the issue in this manner around the time of the Annapolis meeting, many Palestinian and American officials viewed it as an effort to preemptively prejudice the refugee issue to the point that it loses its significance in bargaining and becomes, in effect, a settled matter before talks are resumed, let alone concluded. This is one reason why the demand has never been taken up or echoed by the United States.

Israel certainly has the rights to recognition and self-definition, as do all UN member states. Palestinians must have that right as well. An end of conflict agreement that establishes peace on the basis of an end to all claims upon each other would seem to put all these matters satisfactorily to rest. Some argue that Israelis continue to feel that Arabs in general and Palestinians in particular do not recognize the legitimacy of their national project. Palestinians and other Arabs certainly have the same suspicions about many Israelis. The demand that Palestinians recognize Israel as a “Jewish” state in some explicit but undefined manner seems to move closer to a scenario that requires an implausible reconciliation of national narratives rather than the more achievable goal of peace based on mutual recognition by two independent, sovereign states. I have argued many times in the past that one of the greatest advantages of a two-state peace agreement is precisely that it does not require a reconciliation of national narratives, but rather the coexistence of these narratives in bordering states through which each is individually expressed. Such an agreement hardly implies irredentism or a desire to resume conflict at some later stage. On the contrary, it puts a full stop to the conflict by creating an agreement that both sides will have a vested interest in making work.

III. Israel as not a Jewish state

Having asserted that Israel plainly is a Jewish state in one sense, I feel it necessary to assert that in another sense Israel is, at present, clearly NOT a Jewish state. It depends entirely on which version of Israel one is talking about. In other words, is this a 1948 or a 1967 problem? Israel proper, within its internationally recognized boundaries, is indeed a Jewish state as I explained above, although the nature of that Jewishness is contentious and unsettled. However, the de facto Israeli state as it now stands is neither Jewish nor democratic because of the nature of the occupation and the status of the millions of Palestinians who live under it, and who are not citizens of Israel or any other state. It seems clear that by most demographic measures that between the river and the sea already there are comparable numbers, if not more, Palestinians as there are Jewish Israelis, especially if one takes into consideration the hundreds of thousands of Israelis primarily residing outside of Israel and the occupied territories but who are still included in the statistics.

Israeli Defense Minister Ehud Barak speaking from this very podium at the Washington Institute just a few days ago told your audience, “A successful peace process ? especially with the Palestinians… is a compelling imperative for the state of Israel.” He called it, “the uppermost responsibility of any Israeli government.” As he put it, “Between the Jordan River to the east to the Mediterranean to the west, there live 11 million people: 7.5 million Israelis and 3.5 million Palestinians. And if there was only one sovereign entity on this area named Israel, it will become inevitably either non-Jewish or non- democratic. If this bloc of millions of Palestinians… can vote, it?s a binational state par excellence. If they cannot vote, it?s not a democratic state. So it?s either non-Jewish if they can vote or non-democratic if they cannot and there is no way to bypass this simple and painful reality.” I would add that since 20 percent of those 7.5 million Israelis are themselves Palestinians, if we wish to think in these broader terms, the demographic reality is even starker than his remarks suggested. You do the math.

I think, in fairness, Mr. Barak was being both courageously forthright and slightly delicate in this formulation. He was describing a present and ongoing reality as if it were a future contingency. The reality is that if we conceive of Israel as comprising the territory under its de facto control, and has been for most of its existence up to the present day, then Israel is already neither Jewish nor democratic, and that is not a future contingency but the truth as it stands. This is not even go into the details of life under occupation, and the extraordinary disparities and dichotomies that exist in the fundamental realities defining the lives of Palestinians on the one hand and Israeli settlers on the other.

My point is that Israel de jure, without the occupied territories, assuming the creation of a Palestinian state in the foreseeable future, can certainly be considered both Jewish and democratic, although it is still struggling to afford equality to a large non-Jewish minority. However, Israel de facto, including the occupied territories, assuming no creation of a Palestinian state in the foreseeable future, cannot be considered either Jewish or democratic in any meaningful sense. I’d note that the new “Masbirim” website for citizen public diplomacy is only the latest example of an official Israeli government artifact that unambiguously incorporates all of the occupied territories into its portrayal of the Israeli state. The notion that Israel includes the occupied territories is be found in representations in numerous Israeli official government documents, and is also reflected in numerous policies, not least of them the settlement building project.

The reality is that Israelis face a clear choice: they can have a Jewish and democratic state, or they can have the occupation. They cannot have both. As it stands now Israel exists on two separate registers simultaneously. On one register it is Jewish and democratic, on the other register it is neither. The choice of whether Israel will be Jewish and democratic or not into the future is entirely dependent upon the achievement of a negotiated agreement that provides for the creation of a viable, sovereign and independent Palestine, as well as an end to the conflict.

Because of these realities, the Israeli government should do everything possible not only to negotiate seriously and in good faith toward such an agreement, but also facilitate the present Palestinian Authority state and institution building program adopted by the PA government last August. Led by Pres. Abbas and Prime Minister Fayyad, Palestinians are engaging in a paradigm shift about how to achieve independence, taking up the responsibilities of self-government as they continue to insist on the right of self-determination. And after all, as Fayyad has said, only Palestinians can build their state and institutions — no one is going to do it for them. Therefore, if there is to be a Palestinian state, this is an essential and unavoidable step in achieving it.

This program calls the bluff of Palestinians and Israelis alike: are either or both of them really prepared to develop a Palestinian state in the occupied territories to live alongside Israel in peace and security? For the Palestinians, it means channeling all their energies into constructive efforts designed to create the institutional, infrastructural, economic and, and above all, administrative framework of their future state under the occupation, in order to end the occupation. For the Israelis, it will mean ceding more and more attributes of sovereignty in greater and greater areas of the occupied territories to the PA as it develops these institutions, and it will mean getting out of the way of the Palestinians, both literally and figuratively, in an unprecedented manner. It asks both societies, do you mean what you have been saying for the past 20 years?

I would argue it is strongly in Israel’s interest to not prevent Palestinians from creating the essential framework of the Palestinian state that can allow Israel to keep hold of an essential nature that is both Jewish and democratic and divest itself of elements that categorically negate both of these characteristics. It could be seen as ironic, but it is also eminently logical, that a Jewish Israel requires an Arab Palestine alongside it in order to be itself and not something radically different.