המשך המדרון: התניית הכרעות בדבר נסיגה טריטוריאלית בגדה המערבית, בירושלים או ברמת-הגולן בקבלתן ב"רוב מיוחס"

Translated title of the contribution: Further Down the Slope: Conditioning Decisions about Territorial Withdrawal from the West Bank, Jerusalem or the Golan Heights upon a “Special Majority”

Research output: Contribution to journalArticlepeer-review

Abstract

I have examined various initiatives of the Israeli right-wing to mount obstacles to territorial withdrawal by subjecting it to a super majority – often a proxy for Jewish majority ruling.Several, perhaps most of these proposals are still hanging; some were adopted in part.Reference is to the 2018 amendment of basic law: Jerusalem and 2014 basic law:referendum. The latter formally applies only to withdrawal from regions under Israeli jurisdiction; but for all intents and purposes affects any withdrawal from territories, and one of its constructs is ruling subject to a “majority” of MKs – 61 MKs – rather than a regular majority. I have examined five of the arguments justifying the super majority initiative. One claiming a conflict of interests and disloyalty of the Arab citizenry; another arguing that war and peace must be decided only by those implicated by war and its repercussions,i.e. “Jews and their allies serving in the Israeli military”. A third argument cites human rights alluding to defense of a specific minority - the settlers - from the political majority. This argument claims to lean on Canadian constitutional law as applied in the“secession case” re the province of Quebec. Another comparative argument purports to rest on “many cases” in which super majority was demanded in diverse referendums indifferent countries. The fifth argument concretely applied to withdrawal or other concessions in Jerusalem underscores the city’s exceptional standing.I examined these attempted justifications from moral and legal perspectives, including Israeli and comparative constitutional law, the Canadian in particular, and international law as it pertains to the right of self determination. My findings point to a profound weakness of the arguments propounded and particularly to two major fallacies. First, these justifications widely misrepresent international law and comparative constitutional law, mainly in that they fail to distinguish between a minority’s demand to compromise the territorial integrity of a democratic state by seceding from it and the free surrender of territories by a state that until then colonially subjugated their inhabitants.Secondly, the “super majority” initiative seeks to diminish the weight of Arab citizens’ vote and thus seriously infringe upon their equality and liberty. Such an infringement conflicts with Israeli constitutional law and is bound therefore to not be upheld.
Translated title of the contributionFurther Down the Slope: Conditioning Decisions about Territorial Withdrawal from the West Bank, Jerusalem or the Golan Heights upon a “Special Majority”
Original languageHebrew
Pages (from-to)29-70
Number of pages42
Journalמשפט וממשל
Volumeכ"ה
Issue number1
StatePublished - 2023

IHP Publications

  • ihp
  • Arab-Israeli conflict
  • Constitutional law
  • Palestinian Arabs -- Israel
  • Territory, National
  • Legislation
  • Majorities
  • Human rights
  • Minorities -- Civil rights
  • Constitutional law -- Israel
  • Law -- Israel
  • Elections
  • Law -- Canada
  • Citizenship
  • Boundary disputes -- Israel

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