Ariel Zemach (Ono Academic College). This blog is a summary of an article that is forthcoming in the University of Pennsylvania Journal of International Law, volume 42 (2020). The article is available here.
The Prime Minister of Israel, Benjamin Netanyahu, has recently declared his intention to promote the formal annexation of large parts of the occupied West Bank. The planned annexation would encompass the Jordan Valley and all Israeli settlements located in the West Bank, but would not include Palestinian urban areas. If it happens, such formal annexation would merely be the culmination of five decades of Israeli annexationist policies throughout the West Bank, manifest in the enterprise of Israeli settlements in this territory. Much like formal annexation plans, the settlement enterprise generally targets territories outside Palestinian population centers.
While treating much of the occupied West Bank as its own, Israel has excluded the Palestinian population of this territory from its citizenry. This results in a flagrant discrimination between Israel’s own nationals and West Bank Palestinians.
My purpose is to examine whether the annexationist policies of Israel in the West Bank have given rise, or will give rise in the near future, to a right of West Bank Palestinians to Israeli citizenship. This inquiry concerns mainly the vast majority of the Palestinian population of the West Bank, residing in urban areas that are not targeted by the settlement policy of Israel or by its plans of formal annexation.
The scope of the obligation of a state to confer citizenship on individuals is determined by international human rights law (“IHRL”). The inquiry into whether, and to what extent, international law supports a claim by West Bank Palestinians to Israeli citizenship must answer three questions. First, what is the scope of the obligation of Israel under IHRL to grant citizenship to the residents of a territory that is deemed by international law to have become part of Israel? Second, would the illegal annexation by Israel of the West Bank make that territory a part of Israel for the purpose of the right to citizenship? Third, should Palestinian population centers throughout the West Bank be considered, for the purpose of recognising the right of their residents to Israeli citizenship, to have been annexed by Israel based on a doctrine that extends the concept of annexation beyond formal annexation to encompass de facto annexation as well?
The Obligations of Israel under IHRL in Matters of Citizenship
Israel is a party to the International Covenant on Civil and Political Rights (“ICCPR”) and to the Convention on the Rights of the Child (”Child Convention”), which recognize the right of children to acquire a nationality (ICCPR, Art. 24(3); Child Convention, Art. 7). These instruments do not explicitly identify which state bears the corresponding obligation to grant citizenship. Article 2(1) of the Child Convention, however, confines the obligation of states to respect and to ensure the rights enunciated therein to children “within their jurisdiction.” The International Law Commission therefore construed the Child Convention to require that “unless the child acquires the nationality of another State, he or she has, in the last instance, the right to the nationality of the State on the territory of which he or she was born…” A similar construction may be applied to the right of children to nationality under the ICCPR, in view of Article 2(1) of the ICCPR, which requires states to respect and ensure the rights enunciated therein “to all individuals within [their] territory and subject to [their] jurisdiction.”.
Although Israel is not a party to the Convention on the Reduction of Statelessness, the construction by the International Law Commission of the ICCPR and the Child Convention therefore suggests that Israel is obligated to grant citizenship to individuals born in its territory, who would otherwise be stateless. It seems that most West Bank Palestinians are considered stateless for the purpose of the application of IHRL in matters of citizenship. The High Court of Justice in Jordan has confirmed that the vast majority of West Bank Palestinians do not hold Jordanian citizenship.
The debate on whether or not a Palestinian state exists in the West Bank does not seem to bear on the status of the Palestinians as stateless, as far as IHRL is concerned. To the extent that a Palestinian state exists, the citizenship it extends to West Bank Palestinians is largely void of substance, because under Israeli occupation such a state has never had the capacity to offer Palestinians the benefits typically associated with citizenship. The lack of effective Palestinian control over the West Bank is the main argument in support of the view that the Palestinian political entity in that area does not meet the test for statehood under international law. Assuming that international law would recognize the existence of a state that does not have, and has never had, the capacity to extend effective citizenship—a highly doubtful proposition—relying on such recognition to narrow the sphere of individuals who benefit from the human rights treaty provisions on the prevention of statelessness would undercut the rationale underlying these provisions. Article 24(3) of the ICCPR and Article 7 of the Child Convention, as construed by the International Law Commission, therefore provide that if a given area of the West Bank is considered to have become part of Israel, most Palestinians subsequently born in such territory are entitled to receive Israeli citizenship.
The norm of non-discrimination, binding upon Israel as a party to the International Convention on the Elimination of All Forms of Racial Discrimination and to the ICCPR, also bears on the obligations of Israel in matters of citizenship. The Israeli Citizenship Law allows a path to citizenship based on habitual residence. In view of the principle of non-discrimination, in granting citizenship based on habitual residence, Israel must not discriminate against Palestinian residents of West Bank territories that are deemed a part of Israel. To the extent that a large number of West Bank Palestinians are considered to be its residents, Israel may choose, however, to repeal the habitual residence path to citizenship altogether. Importantly, the Israeli Law of Return entitles Jews and their descendants, but not others, to acquire Israeli citizenship without establishing habitual residence in Israel before applying for citizenship. The question whether the ethnically-based discrimination manifest in the Law of Return can be justified, in view of the harsh history of the Jewish people, as an affirmative action exception to the norm of non-discrimination, was debated extensively in legal literature (See, e.g., Zasloff 2005, pp. 207-210; Gans; Gavison 2011).
The legal literature, the position taken by the International Law Commission, and the approach taken by international organisations, indicate that, in the case of lawful annexation of territory by a state, there also seems to be an emerging right under customary international law of the residents of the annexed territory to receive the citizenship of the annexing state (Blackman 1998, pp. 1170, 1192; Spiro 2011, pp. 720-21). It appears that this emerging right, which has yet to consolidate as existing customary international law, would not be restricted to children and would not depend on whether or not the individuals concerned are otherwise stateless.
Illegal Annexation and the Right to Citizenship
Attaching to illegal annexation a legal effect that extends as far as the emergence of citizenship rights stands in tension with a well-established norm of customary international law, which holds that such annexation is null and void. Moreover, the annexation by an occupier of an occupied territory violates the right of peoples to self-determination, and possibly the prohibition against the use of force, both considered peremptory norms of customary international law. International law prohibits all states from recognising the legal validity of a situation created by a serious breach of a peremptory norm of international law (“obligation of non-recognition”).
Yet, international law seems to recognise a human rights exception to the principle that an illegal annexation is null and void, and to its corollary, the obligation of non-recognition. The European Court of Human Rights (ECtHR) has recognised the legislative and adjudicative authority of the “Turkish Republic of Northern Cyprus” (TRNC), an illegal regime established by Turkey in Northern Cyprus, to the extent that such authority is necessary for the protection of the human rights of the residents of Northern Cyprus. Both the annexation by an occupier of the occupied territory and the establishment of the TRNC by Turkey, the occupier of northern Cyprus, create an illegal regime in the occupied territory, contrary to peremptory norms of international law. Hence, the broad human rights exception to the obligation of non-recognition in the jurisprudence of the ECtHR seems to support recognising the legal effect of illegal annexation for the limited purpose of applying the norms of IHRL to a claim by the residents of the annexed territory to the citizenship of the annexing state.
What Amounts to Annexation?
The international community has taken the view that the full extension by the occupier of its legal and administrative systems to the occupied territory amounts to annexation. I refer to such measure on the part of an occupier as “formal annexation.”
With the exception of East Jerusalem, Israel has not formally annexed Palestinian population centers in the West Bank, nor does it plan to do so. May such population centers be considered, for the purpose of recognising the right of their residents to Israeli citizenship, a part of Israel based on a doctrine that extends the concept of annexation to encompass also de facto annexation?
The concept of de facto annexation is not new to international law. The International Court of Justice and commentators have recognised de facto annexation as a concept that denotes, in the same way that formal annexation does, a violation by the occupier of the right of the people under occupation to self-determination (ICJ Wall Advisory Opinion 2004, p. 184). Some commentators have treated de facto annexation as a concept that denotes a violation by the occupier of the prohibition against the use of force. (Dajani 2017, p. 51; Benvenisti 2012, pp. 245, 349). Commentators have also addressed de facto annexation as a parameter of the illegality of occupation (Ben-Naftali, Gross & Michaeli 2008, pp. 601-05). In view of the significance of citizenship as a condition for the enjoyment of fundamental political rights, I argue that the purview of the notion of de facto annexation should be extended also to matters of citizenship.
For the purpose of the right to citizenship, I propose the display of sovereignty test for the existence of annexation, which brings together formal annexation and de facto annexation. The test is satisfied by the occupier’s continuous exercise in the occupied territory of governmental functions that are typically reserved to a sovereign, in other words, the occupier’s treatment of the occupied territory as its own. The clearest form of such display of sovereignty is the full extension by the occupier of its legal and administrative systems to the occupied territory. Yet, the occupier’s treatment of the occupied territory as its own, which satisfies the display of sovereignty test for annexation, may also take the form of the settlement by the occupier of its own population within the occupied territory, large-scale infrastructure projects aimed at supporting such settlement activity, and a partial extension of the occupier’s own legal system to the occupied territory.
A review of the massive enterprise of Israeli settlements in the West Bank and of the partial application by Israel of its legal system to the settlers and to the settlements demonstrates that Israeli displays of sovereignty in the West Bank amount to annexation. But what is the territorial scope of this annexation? The main challenge in the application of the display of sovereignty test for annexation concerns efforts on the part of the occupier to design the map of annexation in accordance with demographic considerations. Israeli displays of sovereignty in the West Bank, manifest in the settlement enterprise, typically target territories outside Palestinian population centers, as do plans to formally annex parts of the West Bank. Does the scope of annexation extend to population centers within the occupied territory that are not the object of the occupier’s annexationist policies, when the occupier aims to tailor its annexation of occupied territory around, and to the exclusion of, such population centers to advance a “maximum land, minimum population” annexation formula?
The display of sovereignty test for annexation is a factual test, but its application may be informed by normative considerations. A strict application of the display of sovereignty test would preclude extending the scope of annexation to portions of an occupied territory that are not the object of the occupier’s annexationist policies. There is, however, a strong normative argument against allowing an occupier to pick and choose densely populated areas within the occupied territory that the occupier would exclude from the realm of annexation and thereby from the sway of the right to citizenship. This argument concerns both the principle of legality in international law and the right to self-determination.
Attaching to illegal annexation legal consequences that extend as far as citizenship, which is the distinguishing mark of the relationship between individuals and their state, would strengthen the political claim of the annexing state to sovereignty over the annexed territory, and would thereby erode the political force of the legal principle that illegal annexation is null and void. This exacts a toll on the principle of legality in international law. A theory that derives a right of West Bank Palestinians to Israeli citizenship from the annexation of occupied territories by Israel accepts such costs. It seems, however, that the principle of legality would be further harmed if the occupier were allowed to tailor an “illegal annexation bargain” that is most favorable to it with respect to the legal and political consequences of annexation. This would be the case if the occupier were allowed to draw, applying a “maximum land, minimum population” formula, the boundaries of the illegally annexed territory whose residents are entitled to the occupier’s citizenship, and with regard to which a sovereignty claim by the occupier would gain political strength.
Efforts on the part of Israel to design the annexation so that it encompasses as much territory and as little of the population as possible may diminish the capacity of the Palestinian people to exercise its right to self-determination in the form of statehood to the point where Palestinians are completely divested of that right. An international stance that benefits such efforts, leaving most Palestinians without an alternative option of realising the right to self-determination through the exercise of Israeli citizenship rights, would be detrimental to the right of the Palestinian people to self-determination.
When the geographic spread of displays of sovereignty by the occupier resembles a thick web, viewing the entire occupied territory covered by that web, including the “holes” in which the occupier does not act as a sovereign, as subject to annexation does not seem a significant stretch of the display of sovereignty test for annexation. Similarly, the greater the geographic proximity between (a) areas within the occupied territory that are subject to displays of sovereignty by the occupier and (b) other occupied areas in which the occupier did not act as a sovereign, the more plausible it is to consider the latter to have been annexed under the display of sovereignty test.
The Israeli settlements, the infrastructure supporting them (e.g., a massive road network designed for the benefit of the settlers), and the partial application by Israel of its law to the settlers and to the settlements form a thick web of displays of sovereignty on the part of Israel throughout the West Bank. Therefore, a reasonable application of the display of sovereignty test, which is based on the current map of settlements and is informed by normative considerations, would result in the entire West Bank being considered to have been annexed. This would bring the relationship between Israel and all West Bank Palestinians within the purview of the norms of IHRL on the right to citizenship. Given the small size of the West Bank, a distribution of settlements that avoids the annexation of the entire West Bank under the display of sovereignty test would have to be confined to the margins of this territory, requiring the removal of a large number of settlements.
I submit that, in the application of the display of sovereignty test for annexation, the formal annexation planned by Israel would not have a transformative effect on the status of the West Bank. Even in the absence of formal annexation, the settlements spread across the West Bank, the infrastructure supporting them, and the partial application of Israeli law to the settlers and to the settlements, amount to far-reaching displays of sovereignty on the part of Israel that satisfy the display of sovereignty test for annexation with regard to the entire West Bank. The formal annexation of the settlements and the Jordan Valley would merely add another layer to these displays of sovereignty.
The Annexation of West Bank Territories and the Character of Israel as a Jewish State
I adhere to the view that the existence of the State of Israel as a Jewish state is justified as the expression of the right of the Jewish people to self-determination. The character of Israel as a Jewish state hinges on the retention of a solid Jewish majority among citizens of the country, which would not be possible if the bulk of the Palestinian population of the West Bank were granted Israeli citizenship. This consideration does not justify the type of ethnic oppression manifested in the denial of citizenship to non-Jewish residents of territory annexed by Israel, either formally or de facto.
I argue, however, that the legal significance of the right of the Jewish people to self-determination justifies allowing Israel a reasonable time period to secure its Jewish character in a manner that is consistent with the emerging right to citizenship and its application to cases of annexation. In view of the innovative nature of the proposed legal construction that would entitle the Palestinians to Israeli citizenship based on unlawful, de facto annexation, it is possible to construe the obligation of Israel to grant such citizenship as one that will have consolidated only after the passage of a reasonable adjustment period, which allows Israel to narrow the scope of annexation through the removal of settlements.
The featured picture for this post portraits children crossing a street in front of a taxi in Nablus, West Bank, Palestine. The original can be found here.