In a preliminary reading, the Knesset has passed a bill which would allow the Israel Land Authority (ILA) to hold leasing for lands it administers for the Jewish National Fund (JNF) for Jews only. This would bypass a ruling by the Attorney General Menachem Mazuz earlier this year barring such discrimination and also would preempt a case coming before the Supreme Court challenging such discrimination.

Mazuz was actually trying to save the JNF’s ability to hold land for Jews. His compromise was that the state would give an equal amount of land directly to the JNF for all land leased to Arab citizens of Israel. This has been done in the past, but it did not satisfy some Knesset members.

The initial vote in the Knesset doesn’t necessarily portend ultimate passage. Only 80 of the 120 Knesset members voted on this bill at all and, while the vote was 64-16, it is not unusual for votes on bills in the Knesset to change sharply in subsequent readings. Thus, this is a case where a real impact can be made by those who believe that Israel must not be a discriminatory state. You can start by signing a petition I helped review here.

The current argument over JNF lands is due to the fact that the government administers its lands. While very little of Israel’s land (around 7%) is privately owned (and that ownership is actually split between Jews and Arabs rather evenly) that which is privately owned is not regulated. But, according to the Israel’s Basic Law of Human Dignity and Liberty, the government and hence the ILA is forbidden to discriminate in bids for land. This does not, of course, prevent discrimination in land leases, but it does mean that such discrimination is illegal and can be challenged.

The exception to this has long been the JNF lands.

No one is arguing that private landowners can be regulated in this regard. But the JNF is not actually a private land owner. Not only are its lands administered by the state, but some 2/3 of its holdings were sold to the JNF by the state in 1949 and 1950 at a substantially discounted price because these lands were in fact owned by Palestinian refugees and Israel wanted to get that land into private hands so that it was not public land the refugees would be claiming.

One option is for the JNF to resume administration of the land privately. It, not the state, still owns that land. The argument for continuing JNF hold and maintaining JNF regulations over the land is that this was land bought by Jews for Jews over many decades of donations and as such is private property not subject to the anti-discrimination laws in Israel. This obviously doesn’t hold water if the government administers and effectively controls the leasing of that land.

Whether or not the JNF should even continue in this role is a worthy debate, but one that these events do not touch upon. What is most distressing is that, rather than try to get out from under the embarrassment of such clear discrimination, Israel is instead trying to legalize it. As law professor Amnon Rubinstein of the Herzliya Interdisciplinary Center said in a letter to the Prime Minister, the bill “contradicts the Basic Law on Human Dignity and Liberty and harms the basic values of the State of Israel.”

Jews across the political spectrum should be coming together on this, outside of those who blatantly support racism. This bill is precisely what Israel has been doing all these semantic and legal gymnastics to avoid–explicit racist legislation. Now, the piper must be paid. Israel can no longer pretend that ILA practices in this regard do not violate its own anti-discrimination laws, much less norms against such discrimination in any democratic society. It is facing a choice between cleaning up its act or giving up its cloak and being openly racist. On preliminary reading it has chosen the latter, but that need not be the final word by any means. And we can help them come to a more rational, dignified and humane conclusion.

Here is a backgrounder to help you understand what this issue is all about:

It is often said that a major sign of discrimination against Arabs in Israel is that the cannot buy land. It is important to note that Jews can’t either. The exception is the 7% of land that is privately owned (about half of which is owned by Arabs and half by Jews), though this land very rarely changes hands. Instead, the practice governing the remaining 93% of the land, which is administered by the Israel Land Authority (ILA), is that it is leased, for terms that can be short or up to 99 years.

Of course, leasing ends up being discriminatory in practice, but on paper, Arabs have the same right and opportunity to lease land. The exception has been Jewish National Fund (JNF) land. This is the issue that has been raised in recent years by Arab citizens of Israel who have sued the state to allow Arabs to compete for lease tenders on JNF land. The claim is that since the ILA administers this land, it falls under the Basic Law of Israel which prohibits discrimination against any of its citizens. The Attorney General agreed and ruled that tenders for JNF land must be open to all. The High Court has not yet ruled, but it is widely expected that they will concur with the AG’s ruling. This is why the current bill, stipulating that JNF lands must be administered according to JNF guidelines (which stipulate that the land was bought for use by Jews) is being promoted in the Knesset. It is an attempt to circumvent the High Court and the Attorney General.

Anti-Arab hostility in Israel is not unexpected, not only because of history, but because this is typical of the treatment of minorities in multi-ethnic societies. In this regard, it is not different from racial or ethnic discrimination found in many countries, not least the USA. The accusation of many supporters of the Palestinians that Arabs can’t buy land is disingenuous and exaggerated. But by the same token, any claim that Arabs have equal access to land in Israel (even just renting an apartment is a very difficult proposition for Arabs) is completely divorced from reality.

The JNF, like the state itself, does not sell its land. The JNF’s own rules prohibit the sale of its land because JNF land is purchased as “national land of the Jewish people.” When the ILA took over administration of this land, the Knesset passed a law enshrining this rule. Indeed, the whole idea of state ownership of just about all of the land in Israel was inspired by the JNF.

The JNF handed over all administration of its lands to the ILA, with the exception of lands reserved for forestation (which are, by definition, irrelevant to this controversy as they will not be settled by anyone, Jewish or not). The JNF, of course, remains involved in the process of leasing the land, but it’s the ILA that actually carries it out. Indeed, it is only because the ILA administers the land that the bill has relevance at all. To explain…

If the JNF was a private landholder, it would be free to manage that land as it sees fit. The small amount of land in Israel that is privately held is not regulated. It is both freely available, under the law, to any buyer and is not monitored for discrimination in selling practices.

Because the ILA is a governmental agency, it falls under the restrictions of the Basic Law, which prohibits discrimination in land leasing. There is, therefore, an inherent contradiction between the rules under which the ILA operates and its agreement with the JNF to administer JNF lands according to JNF guidelines. It should be noted, I hasten to add, that despite the fact that the JNF is specifically set up to purchase land for the use of Jews, its land is sometimes leased short-term to Israeli Arabs. There are also times when JNF land is leased long-term to Arabs, with this land first being traded to the state in exchange for other state-owned land that then becomes JNF property and is used for Jewish development. This is a cumbersome process, so it is not often pursued, and neither of these exceptions are common practice. In open bidding for JNF land leases, only Jews are permitted to participate.

It is this contradiction between Israel’s anti-discrimination laws and JNF guidelines that has come before the High Court and prompted AG Mazuz’s ruling. The bill is designed to circumvent Mazuz’s ruling and the expected decision of the High Court that a government agency cannot discriminate in this fashion.

The JNF was established in 1901. It’s purpose was to gather charitable contributions from Jews all over the world to purchase land in Palestine from the Ottoman Empire. Over the years, the blue “pushkes” (coin collection boxes) the JNF circulated became symbols of support for Israel. Considerable charitable funds came to the JNF and they purchased as much land as they could in Palestine.

But the biggest land acquisitions were two purchases of around one million dunams each (a dunam is about 1/4 of an acre) in 1949 and 1950. this was land the new state had taken control of after the Palestinian owners fled. Since the disposition of the Palestinian refugees was still unclear at that time, Israel sold, at a steep discount, this land to the JNF in order to make it harder for Palestinians to reclaim it. In 1960, the JNF handed over administration of its lands to the ILA under the arrangement that has lasted until this day.

The JNF therefore argues that it collected money for its land purchases from Jews all over the world, and that money was donated with the understanding that it would be spent on developing Jewish communities in Israel. Hence it should be permitted, and even aided by Israel, in fulfilling this obligation. The case brought to the High Court and the attention of the Attorney General argues that the JNF cannot simultaneously make that argument as a private organization and also reap the benefits of getting sweetheart deals from the government and even have the government administer the land. The law backs this argument in the view of the AG and likely in the view of the High Court (based on an earlier ruling).

The new Knesset bill is necessary for those promoting exclusive Jewish access to JNF lands because the discriminatory practice is based on the ILA’s agreeing to abide by JNF guidelines, not on Israeli law. Hence, if the law and the agreement are in conflict, the law must obviously prevail. Therefore, the law specifically addresses JNF lands administered by the ILA, as the bill would provide an exception for JNF lands to Israel’s Basic Law against discrimination in land leasing. If this bill fails and the High Court rules that the ILA cannot discriminate, the JNF could work something out with the government to return administration of the land to the JNF. It obviously does not want to do so, because taking back the administration involves considerable cost as well as the potential for other problems.

As to which land is JNF land, the demarcation is quite clear. Specific plots of land were bought by the JNF prior to statehood. After statehood, the fledgling state sold the JNF a good deal of land held by absentee Palestinian owners at a steep discount in order to prevent the state from being forced to return that land to it Palestinian owners. Yaakov Shimshon Shapira, Israel’s first attorney general, questioned the legality of these sales, but the Absentee Property Law made it legal. So, there are clear titles that the JNF holds on lands it explicitly and specifically purchased before the days of the state and from the state in its earliest days, and they have only changed when the ILA wanted some JNF lands to lease to Arabs and traded other land for it, as I mentioned above.

As a postscript, I’ll just note that the JNF lands are some of the very best lands in Israel, described by historian Michael Oren as the “creme de la creme” when he was bemoaning how the JNF had the best land and left all the rocky and uncultivated land to the state. Also, it should be noted that the ILA and JNF were reported, in 2005, to have been working on a plan to give each other a “get” to avoid this whole controversy. How far those plans were developed, or have been revived today, I can’t say.