Yesterday (Monday, 22 November) Israel’s parliament, the Knesset, by a vote of 65-33, passed into law an Act unique in the nation’s history. In future, any proposal to withdraw from Israeli territory would have to be approved by a two-thirds majority in the legislature. In the event that this was impossible, a national referendum would be mandatory. The law will take effect immediately.
Because the law applies only to sovereign Israeli territory, no referendum would be needed to withdraw from any part of the West Bank. However, should the Knesset not approve by a two-thirds majority, a referendum would be required for a pullout from east Jerusalem or the Golan Heights, as both have been annexed by Israel. It would also be required if, under a future deal with the Palestinians, Israel ceded land within the pre-1967 lines in exchange for keeping the settlement blocs.
In all its 62-year history, Israel has never held a national referendum. Israeli political analyst Yossi Alpher says: "In effect it weakens the authority of the Knesset to decide these issues, and turns it over to a system that has never been tried in Israel. It is clearly intended to make it more difficult to approve withdrawal from these territories.”
The bill was originally sponsored by Likud MKs, and prime minister Benjamin Netanyahu spoke in favour: "A referendum will prevent an irresponsible agreement, but at the same time will allow any agreement that satisfies Israel's national interests to pass with strong public backing." He was convinced, he added, that any agreement he submitted to the Knesset would indeed enjoy such backing.
Opposition leader Tzipi Livni said it was a sign of "weak leadership," and her Kadima party voted overwhelmingly against the bill.
Saeb Erekat, the chief Palestinian negotiator, was highly critical of the new law. "The Israeli leadership, yet again, is making a mockery of international law, which is not subject to the whims of Israeli public opinion. Under international law there is a clear and absolute obligation on Israel to withdraw not only from east Jerusalem and the Golan Heights, but from all of the territories that it has occupied since 1967. Ending the occupation of our land is not and cannot be dependent on any sort of referendum."
Erekat’s view, while understandable, takes no account of the political realities. As Israel’s previous withdrawals from occupied territory – notably the Sinai peninsula and the Gaza strip – have shown, when it comes down to evacuating settlements, the government needs the utmost determination in imposing its will against often implacable opposition from its own citizens. But these earlier examples could be as nothing compared with the situation that could develop, if it came to forcible evacuations from West Bank settlements.
Imagine a situation in which an Israeli government has concluded a draft peace agreement with the Palestinian Authority involving the swapping of Israeli territory in exchange for retaining some West Bank settlements but evacuating others, and is unable to command a majority for that action in the Knesset. In such circumstances, a national referendum could provide it with enhanced legitimacy for taking the necessary action. Settlers determined to combat government efforts to evacuate them would have a far weaker case if government action were backed by a majority of the nation.
All the same, should the parliamentary vote fail, going to the Israeli public would undoubtedly be something of a gamble.
Although polls of public opinion are notoriously unreliable indicators of a nation’s mood, and indeed public opinion itself is notoriously fickle, columnist Akiva Eldar, writing recently in Israel’s Ha'aretz newspaper may be correct when he says: "Israel has gone back to having a majority of people who view peace as a dangerous trap that the Arabs are laying at the feet of weak politicians."
For example, polls tend to show most Israelis oppose ceding the Old City of Jerusalem, where Judaism's holiest site – the Western Wall – sits virtually cheek-by-jowl with the Al-Aqsa mosque, the third-holiest site in Islam, and both are within hailing distance of Christianity’s revered Church of the Holy Sepulchre. But a comprehensive peace accord could undoubtedly incorporate a formula, reasonably satisfactory to Israelis, Palestinians and other concerned parties such as the various Christian sects currently administering their holy sites. Winning a “yes” vote in a national referendum would, in short, be dependent on the nature of the agreement for which the government was seeking endorsement, and also on how convincingly the government was able to make its case.
The law received more than 61 votes, meaning it was passed by an absolute majority of the 120-member Knesset. This will make it harder for anyone to seek to overturn it through the High Court of Justice, because it will eliminate the argument that the Act was passed with insufficient support for such fundamental, quasi-constitutional legislation. Nevertheless Yariv Oppenheimer, secretary general of Peace Now, said yesterday that his organization will consider petitioning the High Court against it.
Knesset House Committee chairman Yariv Levin, of the Likud party, whose panel prepared the law, told the plenum before the vote that it "reflects the need to ensure that fateful, irreversible decisions about conceding parts of the homeland to which Israeli sovereignty have been applied" will not be made via dubious political horse trading ("as has happened in the past," he added). Instead it will reflect the will of the people, either by way of a genuine two-thirds majority in the Knesset, or failing that, by a referendum of the nation as a whole. As such, he said, the law will promote national unity, because even opponents will not be able to argue - as they have in the past - that the Knesset's decision was not actually supported by a majority of the public.
And that, in the final analysis, is the nub of the case in its favour. The question is, with the peace process apparently irretrievably log-jammed, will even the prospect of a national referendum ever arise?