"Nakba Law" - Amendment No. 40 to the Budgets Foundations Law

The “Nakba Law” authorizes the Minister of Finance to withdraw state funds from any institution or body that commemorates “Israel’s Independence Day or the day on which the state was established as a day of mourning”, or that denies the existence of Israel as a “Jewish and democratic state.”

According to this law, any institution that receives financial support from the state and engages in activities, be it academic, political, intellectual, cultural, or artistic, that deny Israel's definition as a Jewish and democratic state or observe Palestinian Nakba Day as a day of mourning, could have their funding reduced or cut. For instance, if an institution advocates that Israel become a single, bi-national state in the area between the Mediterranean and Jordan, could have this support cut or reduced.

The law places severe and unjustifiable restrictions on freedom of expression, and is aimed expressly at Palestinians. The law entrenches Jewish supremacy in important  public spaces by withdrawing state funding from institutions that challenge the definition of the state as a “Jewish state”. The law further aims to prevent Palestinians from speaking about the Nakba – a seminal event in Palestinian history critical to the Palestinian collective national identity – in a variety of contexts, including the field of education. It has a chilling effect on educators and organizations that prevents them from speaking openly about Palestinian history and culture, and from voicing legitimate criticisms of the state.

Main provisions:

3(B) If the Minister of Finance sees that an entity has made an expenditure that, in essence, constitutes one of those specified below (in this section – an unsupported expenditure), he is entitled, with the authorization of the minister responsible for the budget item under which this entity is budgeted or supported, after hearing the entity, to reduce the sums earmarked to be transferred from the state budget to this entity under any law:

(1)  Denying the existence of the State of Israel as a Jewish and democratic state;

(2)  Incitement to racism, violence or terrorism;

(3)  Support for an armed struggle or act of terror by an enemy state or a terrorist organization against the State of Israel;

(4)  Commemorating Independence Day or the day of the establishment of the state as a day of mourning;

(5)  An act of vandalism or physical desecration that dishonors the state’s flag or symbol.

Context:

Nakba Day commemorates the dispossession and displacement of more than 750,000 Palestinians in 1948 in the Nakba (“catastrophe” in Arabic). It is an integral element of the Palestinian collective history and identity. On 15 May each year, Palestinians and solidarity activists participate in marches, vigils, lectures, and other events in Israel, the occupied Palestinian territories, and around the world both to recognize and preserve Palestinian history and culture, and to demonstrate the continued resilience of Palestinians. The “Arab Vision documents”, drafted by prominent Palestinian leaders in Israel, make clear that for Palestinians, the Nakba is not just the tragedy of refugees, the loss of a homeland, and the founding of Israel on the remnants of a nation, and nor is it just the destruction of hundreds of Arab villages and the transformation of the cultural landscape, but it is also the experience of oppression and discrimination, that continues to this day, against those who remained in their homeland, including many who were internally displaced during and after 1948, and are now Palestinian citizens of Israel.

In 2011, MK Alex Miller of the Yisrael Beiteinu party initiated the Nakba Law, which originally proposed to criminalize participation in Nakba Day events and acts of mourning of Israel’s Independence Day with up to three years’ imprisonment. The law passed in March 2011 by a vote of 37 to 25 without an imprisonment penalty.

Prior to its enactment, numerous Israeli academics and public figures criticized and publicly opposed the bill, along with local non-governmental organizations, which noted that the legislation, “serve[s] primarily to stigmatize and to silence the human rights concerns of the Palestinian Arab minority”.^[1]

Why is it discriminatory?

The law violates the rights of Palestinian citizens of Israel to freedom of expression in several spheres, including the political, academic, intellectual, cultural, artistic, and academic spheres, and specifically the rights to education and freedom of expression and occupation, and discriminates based on nationality. 

The purpose of the Nakba Law is to prevent Palestinians from exercising their democratic right to commemorate a seminal event related to their collective history. Given the centrality of Nakba to the Palestinian people, the law infringes upon their individual and collective dignity in marking and upholding their  cultural heritage and history. Not only does the law explicitly privilege Israeli Jewish history, but it also penalizes Palestinians for acknowledging their own displacement and dispossession.

The law seeks to prevent the development of a cultural discourse around the Nakba and to inhibit intellectual challenges to the constitutional definition of the State of Israel. Because of the Nakba Law’s broad and vague formulation, particularly regarding the conditions for revoking funding, such as “desecrating state symbols”, the law has a significant chilling effect on the operations of entities receiving state funds. Many institutions engage in self-censorship to avoid risking financial sanctions. The law acts as a deterrent to activities that may fall within its compass and result in budgetary sanctions. Potential recipients of services of such affected organizations will therefore also be negatively affected by the chilling effect of the law.

The provisions of the law violate the right to education. Palestinian educational institutions and schools that fall under the definition of an entity whose funding can be revoked under the law will be prevented from incorporating discussions on Palestinian history and identity, with the Nakba as a central event. This exacerbates the pre-existing discrimination in the state curriculum between Palestinian and Jewish schools, as recognized by Human Rights Watch, which noted that "the overarching aims of education remain based on the transmission of Jewish values and culture, and Zionist thought. This type of education may be appropriate for Jewish children, but it is inappropriate for children belonging to the Palestinian Arab minority within Israel." It also violates the rights of Palestinian parents who wish for their children to learn about Palestinian history and collective identity, by denying them the freedom to choose an educational institution that aligns with their views and educational approach. Additionally, it infringes upon the right to freedom of expression of those who engage in critical examination of the character of Israel as a Jewish state within the framework of their work.

This law stifles legitimate opposition and protest against the State of Israel as a Jewish and democratic state. The law therefore undermines the legitimacy and status of Palestinian citizens, their collective memory, and their national identity. The law seeks to shape the values, views, and even the behavior of Palestinians through the use of budget allocations that are conditioned upon the nature of an activity and its political and moral content.

Legal challenges to law:

●      Petition HCJ 3429/11, Alumni Association of the Arab Orthodox School in Haifa et al. v. Minister of Finance and Knesset: English (excerpts); Hebrew. Adalah submitted a joint petition with ACRI, representing parents of Jewish and Palestinian children and an alumni association, arguing that the ‘Nakba Law’ is unconstitutional.

○      In January 2012 the Supreme Court issued its decision, see English; Hebrew. The Court declined to rule on the constitutionality of the law and instead rejected the petition in a 3-0 decision, on the basis of ripeness, finding that the case was premature for decision, without addressing the merits of the arguments.

International criticism:

●      Human Rights Watch (30 March 2011) noted that “[t]he predictable result of the law's severe penalties and the vagueness of the acts and institutions that could be penalized is that it will broadly chill freedom of expression by preventing various institutions from commemorating the Nakba at all…”

●      In a report, the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, 11 June 2012) stated: “The Special Rapporteur is deeply concerned that this law is inherently discriminatory towards Palestinian citizens of Israel, who refer to Israeli Independence Day as the “Nakba”, meaning catastrophe or tragedy, to commemorate those who died and were displaced following the Israeli Declaration of Independence in 1948. The law severely undermines their right to freely express their opinion, preserve their history and culture, and to their right to commemorate the Nakba, which is an integral part of their history … The Special Rapporteur also expresses his regret that, on 5 January 2012, the High Court, in response to a petition challenging the constitutionality of the law, avoided ruling on the matter until a concrete case arises. Given that the mere existence of the law itself encourages self-censorship and that the law itself is incompatible with the international obligations of Israel to fully guarantee the right to freedom of opinion and expression of all individuals, the Special Rapporteur strongly urges that the law be annulled.“ (emphasis added)

●      Committee on the Elimination of Discrimination against Women, in its 2017 concluding observations noted that: “The Committee is concerned that, following the adoption of the so-called boycott and Nakbah laws in 2011, human rights defenders, including Israeli and Palestinian women, have been subjected to severe restrictions on their activities, including through limitations on their financing.”

●     In its 2023 report, the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel noted that “Israeli authorities have passed laws to reduce and restrict civil society activities. These include amendment No. 40 to the Budgets Foundations Law 2011, the 2011 anti-boycott law, the 2016 amendment to the Law of Associations, the 2016 Counter-Terrorism Law and amendment No. 28 of March 2017 to the law on entry into Israel.”