Israel is weaponising citizenship against Palestinians

Recent decisions of Israel’s Supreme Court confirm that Palestinian citizens’ status inside Israel is not only separate and unequal but also precarious.

Whereas a decision last year upheld the constitutionality of Jewish Supremacy, a decision earlier this month enables the revocation of citizenship for “breach of allegiance.” Together, these rulings showcase the inferior constitutional status of Palestinian citizens, who comprise a fifth of the population.

Last year, the Supreme Court ruled that Basic Law: Israel as the Nation State of the Jewish People is consistent with equality thereby subordinating equality to Jewishness as the state’s basic norm. Like all other Israeli constitutional laws, this law omits the fundamental democratic principle of equal protection under the law.

It is superior to ordinary legislation in the hierarchy of laws and cannot be changed by means of ordinary legislation. It not only maintains that the right to self-determination in Israel is exclusive to the Jewish people, thereby erasing the political existence of the native population, but also commits the state to the “national value” of “development of Jewish settlement”.

"The state of Israel, as Israel’s leaders have long emphasised, is not a state of all its citizens but a Jewish State, and its legal system sanctions Palestinian citizens’ exclusion from fundamental rights"

Thus, the law makes explicit in the constitution what was implicit in a previous legislation on admission committees in 2011, which empowered communities to exclude those “socially incompatible” from residency. The state of Israel, as Israel’s leaders have long emphasised, is not a state of all its citizens but a Jewish State, and its legal system sanctions Palestinian citizens’ exclusion from fundamental rights.

In such a political and legal culture, the difference between right wing and more liberal Zionist approaches focuses not on whether there is discrimination against the native population but on the degree of acceptable discrimination. 

It is crucial to remember this background in order to understand the ramifications of the more recent decision on revocation of citizenship. An extraordinary panel of seven judges approved the 2009 amendments to the Citizenship Law that empowered the administrative court, upon the request of the interior minister, to revoke citizenship if a citizen committed a “breach of allegiance”, defined as committing terrorism, treason and espionage, and or acquiring citizenship or permanent residency in hostile countries or territories, including Gaza and Lebanon.

Whereas the Supreme Court found procedural defects in the particular two cases of revocation brought before it, the importance of its ruling lies in confirming the state’s ability to revoke citizenship in a context in which “breach of allegiance” is ideologically defined within the contours of the Zionist consensus. In other words, it is a weaponisation of the citizenship status as a political tool to mark the identity of the political community.

Israel's contentious citizenship law proposal is chiefly motivated by demographic concerns and aims to create separate citizenship tracks for Israel's Jewish and Palestinian citizens. @emadmoussa explains why this legalises racism ⬇ https://t.co/0u6QLKylTD

— The New Arab (@The_NewArab) February 25, 2022

The Citizenship Law had empowered the state to revoke citizenship of naturalised persons since 1952, and of any citizen since 1968. The court emphasised in its ruling that the primary, constitutionally acceptable objective for the law is declarative rather than using revocation of citizenship as a deterrent or preventive measure.

As a declarative measure, it pronounces to those who commit heinous crimes that they undermined the political community’s foundations and thus removed themselves from it, are not “worthy to be citizens” in it, and no longer belong to it.

Whereas criminal law expresses society’s vehement disapproval of the individual’s actions through harsh penalties and incarceration, the court acknowledges, revoking citizenship serves a more fundamental purpose of outlining the “minimal solidarity required” to preserve the state.

Citizenship, Chief Justice Esther Hayut argued, is not merely a right to have rights, but in fact crucial to identity and belonging. Citizens owe the state allegiance and loyalty and this requires, at minimum, the duty not to gravely harm state security.

The court laid down this decision although it recognised that Israeli law is neither consistent with international law nor with democratic practice. Israel is exceptional because it allows revocation even when the citizen is left stateless.

The court did not challenge this but only insisted that the state replaces citizenship in such cases with a permanent residency. It thus enables the downgrading of a political status to a social status that confers social benefits but is devoid of the right to vote.

What is missing from the ruling is a recognition of the political context of the 2009, and the later but similar 2011, amendments regarding revocation. These amendments followed electoral campaigns by influential right wing Zionist parties that directed the slogan “no citizenship without loyalty” against the Palestinian minority and its Knesset representatives because they are outside the Zionist consensus.

The court rejected arguments that the legal power to revoke citizenship is selective and discriminatory despite the fact that it has been considered only in cases of Palestinian Arab citizens, but never Jewish citizens. It claimed that there is no sufficient data to back the “general” claim of discrimination given the low number of cases in recent years.

"Whereas the court emphasised the citizens’ duty of allegiance, it does not explain how non-Jewish native citizens can exercise or show this allegiance and loyalty toward a state that excludes them and situates them outside the political community"

In effect, however, the ruling enables such discriminatory application. Whereas the court emphasised the citizens’ duty of allegiance, it does not explain how non-Jewish native citizens can exercise or show this allegiance and loyalty toward a state that excludes them and situates them outside the political community, as per its constitutionally defined identity. Its dominant culture treats these citizens as enemies, a demographic threat, and a potential fifth column. Security is thus inherently connected to the Jewishness of the state.

Whereas the court considered Israel a liberal democracy facing terrorism, Amnesty International declared few months earlier that Israel has been practicing apartheid against the Palestinian people, including those who are citizens, for decades.

Amnesty wrote, “security is not a viable explanation for the prolonged and cruel discrimination to which Palestinians have been subjected. Instead, the evidence of widespread, systematic and cruel violations documented… leads to the conclusion that the intention is to ensure Jewish Israeli domination over and oppression of Palestinians in all areas under Israel’s control.”

The ideologically motivated nature of security and terrorism that enables revocation is evident in the context in which Palestinian citizens' violations are inherently expressive of ideological enmity to the state, whereas Jewish violations, no matter how heinous, are simply criminal and rarely ideological or terroristic.

Ami Popper killed seven Palestinian workers in 1990 but his actions were never framed as a breach of allegiance or lack of loyalty to the state. Hagai Ameer assassinated Israel’s prime minister, Yitzhak Rabin, and yet his citizenship was not revoked despite a petition to the Supreme Court in 1996. Marcus Klingberg was a senior Soviet spy who led the Nes Tziona biological warfare institute, yet his citizenship was not revoked either.

When compared to these actions, the fact that Palestinian citizens have been the exclusive targets of revocation illustrates that the citizenship bond is fundamentally different. The bond between a Jewish citizen and the Jewish State is unbreakable despite heinous crimes.

The Palestinian, however, whose existence preceded the existence of the colonial state, possesses an inferior citizenship that can be taken away at the will of the oppressor.

Nimer Sultany is Reader in Law at the School of Oriental and African Studies and editor of the Palestine Yearbook of International Law.

Follow him on Twitter: @NimerSultany

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Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.