A theoretical but important discussion

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The demand to submit an Israeli-Palestinian peace agreement to a popular referendum is not exclusive to either side. Last November, the Israeli Knesset passed a law mandating a referendum under certain circumstances. Hamas leaders have from time to time indicated that a two-state solution affirmed by a referendum of all Palestinians, including the refugee diaspora, might be acceptable to them. Here and there, PLO leaders have mentioned the referendum possibility, too. Given the fact that the Palestinian parliament no longer has a legal mandate, a referendum could become the fall-back mechanism, at least in the West Bank, for approving a peace deal.

At present, the only binding referendum is last November’s Knesset law, and it is limited in nature. It applies only to lands occupied in 1967 that have since been effectively annexed to Israel–the Golan Heights, annexed in 1981, and the areas north, east and south of Jerusalem ("East Jerusalem") to which Israeli law was applied in 1967–as well as any parcels of sovereign Israeli territory inside the green line that might be included in "land swaps" in return for Israel annexing settlement blocs as part of a peace deal with the Palestinians. Any other lands Israel gives up under a final status agreement, such as the Jordan Valley, do not require a referendum under the new law.

The law, incidentally, is not a "basic law" with quasi-constitutional status. This means it is subject to review on appeal by the High Court of Justice, which could easily rule it unconstitutional insofar as it virtually neutralizes the role of the Knesset as Israel’s primary legislative institution. By the same token, a future government that can muster the support of a majority of the Knesset in favor of a peace deal involving the Golan or East Jerusalem can also, if it chooses, apply the same majority to cancelling the referendum law.

Note, too, that the acts of annexation under which Israel extended its sovereignty to East Jerusalem in 1967 and the Golan in 1981 required nothing more than simple Knesset majorities and were never submitted to the public for approval. Hence at the ethical level there is room to question the thinking behind a referendum law that refers to the return of those territories, whether it comes from the political left or the right.

Back in Rabin’s day, the left weighed the idea of a referendum as the sole sovereign decision-making mechanism for a deal with the Palestinians involving Jerusalem or a deal with Syria–bypassing the Knesset, where the toxic interaction between the Palestinian issue and Israeli politics renders decision-making extremely problematic. The right-wing version that was passed last year, in contrast, approaches the referendum mechanism as a fall-back option for scuttling a peace deal that has actually been approved by the Knesset.

Thus, a referendum will be called if at least 61 but fewer than 80 MKs have approved a peace agreement involving return of annexed territories. The public then will have the option of vetoing or approving the Knesset vote. But if the Knesset rejects the peace deal, no referendum will be called to possibly reverse the Knesset decision.

There appears to be at least one "hole" in this new law, too. The question the public will be asked is, "Are you for or against the agreement approved by the Knesset?" But suppose the government of Israel and the Knesset decide to withdraw from previously-annexed territories on the basis of a United Nations demand–a distinct possibility sometime later this year–or simply unilaterally, i.e., without a treaty or agreement, as in Gaza in 2005: will the law apply?

Ultimately, in last November’s Knesset decision, the right voted for the referendum law and the left against. That Prime Minister Binyamin Netanyahu, a declared advocate of a two-state solution, supported a law making it more difficult for him to win approval for such a solution clearly reflects the ambiguous nature of his commitment to peace.

Still, the actual fate of a referendum, if and when it is held, is by no means a foregone conclusion. Suppose, for example, that Syrian President Bashar Assad comes to Israel to appeal directly to the public to support a peace deal involving the Golan, and sweeps the public behind him much as Anwar Sadat did in 1977 concerning Sinai. (In contrast, it’s hard to imagine such an act of charisma on the part of any current Palestinian leader.) Moreover, around 14 percent of the Israeli voting public, Arab citizens of Israel, can be expected to vote automatically for any withdrawal agreement, thereby reducing the percentage of the Jewish public that has to be convinced. Indeed, a referendum seemingly empowers the Arabs of Israel to a greater extent than their diffuse Knesset representation.

Meanwhile, as long as there’s no peace process, and however important the issue at stake, this remains a theoretical discussion.

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