The Israeli-Palestinian conflict is typified by periodic outbreaks of violence and terror carried out against Israel’s citizens within Israel by Palestinian terror groups and individuals. Such violence has included suicide attacks by Palestinian residents of the West Bank areas of Judea and Samaria and the Gaza Strip.
Tragically, many acts of terror have been carried out by those possessing Israeli identity cards attained through marriage and family unification with Israeli Arab citizens or residents. They took advantage of their newfound Israeli citizenship, which enabled unrestricted movement between Palestinian-controlled areas and Israel.
During the height of the violence in what became known as the “Second Intifada” (2000–03), the Israeli government attempted to prevent abuse of its citizenship and rights of residence. It decided to realize its sovereign prerogative—a prerogative held and applied by every sovereign state—and limit the acquisition of Israeli citizenship and residence rights by enacting the “Citizenship and Entry into Israel Law (Temporary Order), 2003.”
The law aimed to temporarily limit the granting of citizenship and residency permits to Palestinian residents of the areas through family unification.
In light of its temporary nature, the law has been periodically extended and also amended to provide exceptions, such as allowing applications by women over the age of 25, men over the age of 35 and children under 14, in order to prevent separating them from their families. In 2007, it was further amended to cover requests for citizenship through family unification between Arab-Israeli citizens with citizens of the enemy states of Iran, Iraq, Lebanon and Syria.
Renewal of the law
According to a report in The Jerusalem Post on July 5, Israeli Interior Minister Ayelet Shaked, while presenting the law for renewal by the Knesset, claimed that the majority of terrorist attacks carried out within Israel by Arab Israelis were committed either by individuals who obtained some form of status in Israel through family reunification under the Citizenship Law or by their offspring.
The article referred to a 2018 report by the Shin Bet Israel Security Agency that since 2001, some 155 individuals involved in terrorist activities had obtained entry to Israel under family-reunification laws.
The law was and is considered necessary to maintain national security in light of violence by hostile elements against Israel’s public. It has also been presented as a source of stress and inconvenience for Arab Israelis and their Palestinian partners from the adjacent West Bank and Gaza Strip, who have not been involved in acts of terror, inasmuch as it influences how or whom they decide to marry. As such, the law is seen by political and human-rights critics as a measure restricting basic human rights involved in family unification and designed to restrict the growth of Israel’s Arab population.
On the other hand, supporters of the law justify its continued security necessity in light of the ongoing hostility, incitement and violence by Palestinian leaders and terror groups, as well as governments hostile to Israel, such as Iran, Iraq, Lebanon and Syria. They also consider that in such a state of political and security instability, enabling marriage between Israel’s citizens and residents with those of a hostile entity may prejudice security and public safety.
Others view the necessity for the law as a means of preserving Israel’s demographic structure.
The Israeli human-rights group Adalah challenged the validity of the law in 2006 in the Supreme Court. In a 6-5 decision, the court ruled to uphold the law. While acknowledging the negative effect on the human rights of those Arab-Israeli citizens prevented from family reunification, the court nevertheless viewed the continued periodic need to extend the validity of the law as necessary for Israel’s security.
Following the election of Israel’s new government and related internal political controversies, the Knesset was unable to achieve the majority required to renew the validity of the law, meaning the restrictions on attaining Israeli citizenship and right of residence have been lifted and are no longer valid.
Political manipulation and criticism
The citizenship law and the process of renewing the periodic limitation on granting citizenship to residents of the territories seeking to gain citizenship through marriage to Israeli citizens have attracted a spate of criticism—international and local—by political elements intent on seeking to harm Israel.
A typical example of such blind, uninformed and overtly biased criticism is seen in a tweet on July 12 by Congresswoman Rashida Tlaib (D-Mich.), known for her fixation on and hostility towards Israel.
Such criticism needs to be addressed in light of its misguided, misleading, and inappropriate nature.
The right to nationality and the sovereign prerogative to restrict immigration—international law and practice
There is no questioning the basic and inherent right of all to nationality, as set out in Article 15(1) of the 1948 Universal Declaration of Human Rights, together with the rights of individuals and groups to move from country to country.
Furthermore, based on their sovereign interests, countries have a parallel right and sovereign prerogative to permit such entry, to prevent it, to limit it and to determine the status of such people within their territory.
Such situations involve the basic elements of international relationships—the human rights of people to a nationality, to move, migrate, seek refuge and safety and to establish homes and settlements, on the one hand, and the sovereign rights and prerogatives of countries to open their borders, accept and absorb immigrants or to close their borders and limit their entry, on the other.
International law and state practice recognize that foreign nationals have no intrinsic right to enter a country. Every state has the sole right to determine who is entitled to enter its territory and to set immigration quotas based on security, public interest and other relevant considerations. These limitations may involve some element of denial of human rights in the exercise of such discretion.
International practice has, over the years, developed a wide range of recommendatory instruments that attempt to steer a middle ground between the sovereign prerogative of states to determine whom they will allow into their territory and human-rights obligations to employ reasonable practices vis-à-vis those requesting citizenship and migration.
One of the most recent and detailed international documents that addresses the dichotomy between human rights of peoples to migrate and to acquire citizenship, and sovereign rights of states to regulate, accept or prevent it is the “U.N. Global Compact for Safe, Orderly and Regular Migration,” appended to U.N. General Assembly Resolution 73/195 (2018) of Dec.19, 2018.
While this “Global Compact” reflects a consensus within the international community as to ways to manage the migration issue, it is not a binding international instrument. It reaffirms the sovereign right of states to determine their national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law.
As such, it distinguishes between regular and irregular migration status, including taking into account different national realities, policies, priorities and requirements for entry, residence and work, in accordance with international law.
In drafting this document, some states (Iceland, Lithuania, Malta, the Netherlands and Denmark) recorded their position that the document creates no new legal obligations for states, nor affects international customary law or treaty commitments; they saw it as confirming the sovereign right of states to determine their migration policies in conformity with international law.
The United States, in opposing adoption of the instrument, asserted: “Decisions about how to secure its borders and whom to admit for legal residency or to grant citizenship are among the most important sovereign decisions a state can make and are not subject to negotiation or review … In sum, the Global Compact strikes the wrong balance. Its pro-migration stance fails to recognize that well-managed, legal immigration must start and end with effective national controls over borders.”
Similar positions were expressed by France and Jordan.
Individual state practice—a compilation
Canadian restrictions to granting of citizenship include security reasons, such as espionage, subversion (i.e. attempts to overthrow a government), violence or terrorism, membership in an organization involved in human- or international-rights violations, including war crimes, crimes against humanity, being a senior official in a government engaged in gross human-rights violations or subject to international sanctions and organized crime.
United Kingdom conditions for refusal to accept entry and citizenship are set out in its 1971 Immigration Act, and include “where the applicant’s presence in the U.K. is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds);” conviction of a criminal offence for which they have received a custodial sentence of 12 months or more; a persistent offender who shows a particular disregard for the law or has committed a criminal offence, or offences, which caused serious harm or where the applicant is, or has been, involved in a sham marriage or sham civil partnership, or where the person’s presence in the UK is not conducive to the public good.
Both France and Germany require proof of being a law-abiding citizen with no criminal record.
Italy denies citizenship for crimes against international or local personages; crimes against the political rights of citizens; intentional crimes for which the law provides for a sentence of three years imprisonment or more; non-political offenses with a custodial sentence of more than one year by a foreign judicial authority if the sentence has been recognized in Italy.
Spain requires a criminal-records certificate for those seeking to immigrate above the age of 18.
Greece denies citizenship to those having been involved inter alia in crimes against the regime, treason against the country, homicide, dangerous physical injuries, crimes relating to drug dealing and trafficking, money-laundering, international financial crimes, crimes against sexual freedom and financial exploitation of sexual life.
Belgium requires a certificate attesting to the lack of any convictions for crimes or offenses under common law.
Poland refuses the acquisition of citizenship if it poses a threat to the defense or national security or safety and public order.
The Netherlands refuses citizenship by those convicted of a war crime or a crime with a terrorist motive that seriously harms the interests of the Kingdom.
The United States denies citizenship inter alia to those advocating the overthrow of the government by force or violence or other unconstitutional means, unlawful assaulting or killing of any officer, sabotage, writing or publishing written or printed matter, advocating or teaching opposition to organized government.
Israel’s sovereign prerogative to restrict the acquisition of its citizenship and residence in its territory is no different from the practice of other sovereign states seeking to restrict immigration and acquisition of citizenship by elements that could potentially constitute a threat to their security and public order.
The history of abuse by some Palestinians of their Israeli citizenship acquired through family unification for purposes of terror, and the constant incitement and financial incentives to terror by the Palestinian leadership, leave Israel little choice but to temporarily maintain restrictions on the acquisition of its citizenship. This is despite the regrettable harm that it may cause to those genuinely seeking family unification.
Regretfully, Tlaib and her ilk choose to continue with their illogical fixation of unjustifiably criticizing Israel. Michigan, where Tlaib was elected, has a Palestinian community, but it is dwarfed by first, second and third generations of Syrian/Lebanese (120,000), Iraqi/Chaldeans (100,000), Jordanian/Palestinians (25,000) and Yemenis (15,000). One may wonder if she speaks out as loudly about the massacres in Syria, the ethnic cleansing of the Chaldeans or the iron grip of Iran/Hezbollah on Lebanon.
Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan and Lebanon. He served as legal adviser and deputy director-general of Israel’s Foreign Ministry and as Israel’s ambassador to Canada.
This article was first published by the Jerusalem Center for Public Affairs.
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