John Kerry’s announcement of talks to arrange a basis for Israelis and Palestinians to meet in Washington to negotiate has prompted the right-wing in Israel to worry. A sure sign of this is their renewed push, led by Naftali Bennett of Jewish Home, to entrench in a Basic Law the current legislation that calls for a national referendum on the giving up of any territory over which Israel claims sovereignty. That would make any agreement with the Palestinians subject to a public vote, since it would almost assuredly include land swaps between the West Bank and sovereign Israel.
I’ve already written why I think an Israeli referendum on peace isn’t a good idea. But commentators have in recent days laid out a series of smart reasons why it is, and the benefits one would provide. Dahlia Scheindlin argues that, on the basis of polling data, voting trends, and a Knesset majority, a referendum would probably pass and so there isn’t anything to be afraid of. Aeyal Gross contends that a referendum is necessary, but will have to include Palestinians in the West Bank, since it’s their future that is being decided. Carlo Strenger thinks it’s a way to generate widespread national legitimacy, unity, and acceptance for a final agreement and an end to Israeli claims to the West Bank.
These are strong arguments. But there is another concern that hasn’t been raised yet, which deserves immediate attention. What, exactly, would the referendum entail? What would the question be? A simple “Do you support this peace agreement or not?” This seems a bit too broad, because it opens the door to all kinds of fear-mongering and ideological interpretations, not to mention the threat that a rejection could set those in Israel who are working for an agreement back decades.
On the other hand, a detailed question that includes elements of the agreement would be too long and complex. It might prompt Israelis who want a final agreement but who disagree with specific provisions to reject the thing in its entirety. It might also prompt a renewed fight over specific clauses, even after they’ve been hashed out between Israelis and Palestinians and agreed to—probably after an intense struggle—by the Israeli government.
The Canadian case is instructive here. In 1995 the province of Quebec held a referendum on separation from the rest of the country. The question on the ballot, in English: “Do you agree that Québec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the Bill respecting the future of Québec and of the agreement signed on 12 June 1995?”
The problem was that while the question directly asked the public whether it supported secession, it was simply too broad—indeed, too simplistic. It did not give any sense of the difficulties involved in actual separation, what the Canadian government might do in response, how the national debt would be divided, what the provisions of the partnership might entail, and so on. The question of sovereignty includes who has the right to it; this wasn’t addressed, either, which in turn prompted Aboriginal groups in Quebec to then argue they, too, could secede—from Quebec.
Under these conditions the campaign was a bit confusing. In the end, the “no” side won, but only barely: 50.58% to 49.42%. This prompted the federal government to then write the Clarity Act, giving the national parliament the right to vet any question on secession to make sure it clear (and giving the House of Commons the authority to override the results if it determines the question is not) and legislating that any vote to secede must reflect the “clear expression of the will of the population” of the province trying to leave.
The Clarity Act is widely considered to be too vague, and possibly not all that constitutionally-strong. What is a “clear expression” of the popular will? Does it mean citizens in Quebec only, or also in the rest of Canada? By what majorities and where would a “clear expression” be measured?
One can imagine such issues being raised with regard to Israel, particularly regarding the Jewish and Arab populations. The Oslo Accord, for instance, survived a vote of no-confidence (in the government) in the Knesset—but only with the support of the Arab parties. Rightists have since contended that the lack of a Jewish-Zionist majority undermined the legitimacy of the agreement. This is, of course, unfair and discriminatory, but the same argument is likely to be raised in the course of a referendum campaign.
In any event, the Clarity Act was prompted by the difficulties inherent in asking the public whether it would support or oppose something as complex as secession. In the Israeli case, while there would not be secession, there would be a withdrawal of Israeli control from—in all likelihood—parts of East Jerusalem and the Old City, and virtually all of the West Bank. The complicated—and probably convoluted—arrangements to share West Bank water, govern the Holy Basin, ensure security of Jewish religious sites in Palestine, and compensate settlers who return to Israel cannot be captured in a single question.
The discussion about mandating a referendum on peace, either directly or by making the current law on the ceding of sovereign Israeli territory a Basic Law, ignores all of this. This might be tactical—it gives parties the chance to put off hard decisions about peace and stay in the coalition.
But entrenching such a law, without more careful consideration of what it actually entails, is dangerous. There is far too much suffering already taking place to take such a chance.