“The winner takes it all”. The perils of requiring Israel to grant citizenship to Palestinian residents of the Occupied Territories

By Tamar Hostovsky Brandes (Ono Academic College)

In his GLOBALCIT blog and a forthcoming article , Ariel Zemach suggests that Israel is required, under IHRL, to grant citizenship to residents of territories of the West Bank that were annexed to Israel. This obligation, he argues, applies not only to territories that were formally annexed, but also to territories that were annexed de-facto, subject to an “exercise of sovereignty” test. Under current Israeli practice, this would lead to the conclusion that all residents of the West Bank are eligible for Israeli citizenship. In this response, I would like to highlight three difficulties that arise from this argument: its contribution to the entrenchment of the settlements as a permanent reality, its dire implications for self-determination, in the substantive sense, of the Palestinian people, and its presumption that the granting of citizenship would result in adhering to IHRL obligations, in particular with respect to equality, towards Palestinian citizens of Israel.

Accepting the Settlements as a Legal Reality

After years of declaring an intention to annex parts of the West Banks, such plans have been formalised into the recent unitary agreement between PM Netanyahu and his former contender, Benny Gantz.  For years, Israel has avoided annexation, largely due to concerns regarding international condemnation of Israel in the case of annexation and the possible implications of such condemnation.

However, under the auspices of U.S. President Trump’s Peace to Prosperity plan, a new proposition emerged: Annexation, it appears, will take place under a “maximum territory, minimum population” formula, which will allow Israel to exercise sovereignty over settlements, but minimise the number of Palestinian residents to which it will owe citizenship. Zemach rejects this proposition, arguing that under an “exercise of sovereignty” test, Israel is obliged to grant citizenship to all residents of the West Bank.

The shift of focus, from prohibition on annexation to Israel’s alleged obligations under IHRL is premised on acceptance of the settlements as a permanent reality.  Under this premise, objections to formal annexation are irrelevant: the annexation train has long left the station. What is left now is debating what duties apply next.

This is a highly problematic position, which rewards Israel for prohibited annexation. Zemach argues that this is not necessarily the case, and that one may, at the same time, require Israel to grant citizenship to Palestinians under IHRL, while objecting to annexation. He relies on the example of the ECtHR’s recognition of the Turkish Republic of Northern Cyprus for the purpose of imposing upon it IHLR obligations. The comparison, however, is unconvincing. As Zemach himself recognises, citizenship is not “just” a human rights, but is the essence of the relationship between the individual and the state. Conferring citizenship upon Palestinian citizens would solidify Israel’s control of the OPTs as a permanent reality, in which all claims regarding illegality of the annexation, even if theoretically possible, will effectively become irrelevant.

Adopting the Israeli Position – A Denial of Self-Determination

From an internal Israeli perspective, objections to annexation are already largely irrelevant.  Most Israelis perceive Israel’s control of the OPTs and the existence settlements to be a permanent reality, a position that has been internalised, to some extent, by the Supreme Court. Moreover, current public discourse in Israel perceives the question of the future of the OPTs to be an internal Israeli question. Zemach’s argument is built on the same premise: the choice between the different two courses of action presented, evicting settlements or granting citizenship to Palestinian residents, is to be made by Israel alone.  

While Zemach stresses that his argument pertains only to the limited question of the duty to grant citizenship, it is difficult to see how it can be separated from the larger framework of the mutual obligations between Israel and the Palestinian Authority, which, in the framework proposed, is not a relevant actor. Israel has recently declared, in response to the statement of the ICC prosecutor on the conclusion of a preliminary investigation in the case of Palestine,  that Palestinians do not exercise sovereignty over the OPTs since the Interim Agreement, which is still binding, requires the parties to settle the status of the territories through bilateral negotiations.  Putting aside the question of how Israel plans to justify the planned formal annexation in light of these statements, the agreements entrench a principle of bilateralism as a central pillar of the relationship between Israel and the PA, and as a facet of the right to self-determination. Unilateral actions, including a unilateral grant of Israeli citizenship, not only diminishes the probability of Palestinian statehood, but negates the commitment to bilateralism.

Adopting a prism that focuses on Israel’s acts and obligations also neglects the issue of self-determination in the deeper, substantive sense. The essence of the right to self-determination is the right of a people to decide upon their own political future. Zemach’s argument is that Israel is obliged to grant citizenship, assumingly, to those residents who are interested in such citizenship. However, the consequences of refusal of Palestinian residents to accept such citizenship is not discussed. The precedent of East Jerusalem suggests that this is a likely scenario. Israel will argue, in such scenario, that it has fulfilled its IHRL obligations, shifting the discussion away from the illegality of annexation to blaming the Palestinians themselves for refusing to accept the “solution” it offered.

The Meaning of Citizenship in a Post-Annexation Israel

In the internal Israeli public discourse, the claim that annexation would require Israel to grant citizenship to Palestinian residents of the Occupied Palestinian Territories (OPTs) has served, more than anything, as a caution against such annexation. This scenario, it has been argued, would result in a demographic change that would be the end of the Jewish state. Zemach echoes this argument, stating that “[t]he 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.” Under this principle, he argues, Israel should be granted an adjustment period during which it would be allowed to “remove settlements” to minimise the territory in which it is considered to “effectively exercise sovereignty”, in order to maintain its character as a Jewish state.

Putting aside the general question of whether and to what extent Israel can legitimately seek to preserve a Jewish majority, Zemach’s claim rests on the assumption that once Israel will be willing to grant citizenship to Palestinian residents of the OPTs, equal citizenship will result. This is why he assumes that a demographic change will lead to a change in the character of Israel as a Jewish country. This, however, is not necessarily the case.

First, the precedent of East Jerusalem demonstrates that even when Israel is willing to formally offer citizenship to the Palestinian population in annexed territories, in reality, it imposes numerous limitations and hurdles on those residents of East Jerusalem that are interested in acquiring citizenship. This is not “just” a procedural issue. It attests to the fact that Arab residents of East Jerusalem, even more than half a century after annexation, are perceived by Israeli authorities as “others”.

Second, the presumption that the existence of a large non-Jewish minority will affect the definition of Israel as a Jewish state ignores the possible implications of the Basic Law: Israel as the Nation State of the Jewish People, which was enacted in 2018.  

The Law includes 11 articles, which pertain to Israel’s character as a Jewish state. Article 1 states that the land of Israel is the “historic motherland” of the Jewish people, that the state of Israel is the nation-state of the Jewish people where they exercise their right to self-determination, and that the right to self-determination in the State of Israel is exclusive to the Jewish people. Article 2 determines the state symbols. Article 3 declares “complete and united” Jerusalem to be the state’s capital. Article 4 determines that Hebrew will be the state’s language, and that Arabic will be awarded a “special status”. Article 5 determines that the state will be open to Jewish immigration. Article 6 establishes the state’s commitments to the Jewish diaspora. Article 7 declares Jewish settlement to be a “national value”, and states that the state will take actions to promote it. Article 8 determines that the Hebrew calendar will be the official state calendar. Article 9 states that Independence Day (Yom Ha’atzmaut) is the official state holiday. Article 10 states that Memorial Day and Holocaust Day are official state memorial days. Article 11 determines that this Law can only be changed by a Basic Law accepted by a majority of the members of the Knesset.

The law stirred an intense public debate in Israel and petitions against it are currently standing before the Supreme Court. These petitions raise important questions regarding the law’s possible implications for equality and internal self-determination of the Arab-Palestinian minority in Israel. However, in addition to these concerns, the law may serve, if citizenship were granted to a large number of Palestinians, as a means to ensure that a demographic change does not result in a change of the nature of Israel as a Jewish state. An absolute majority of 61 members of the Knesset is required in order to repeal or change the Law, and it may serve, until such majority is reached, as a tool for justifying an array of measures in order to entrench the Jewish character of the state.   

The featured picture of this blogpost is entitled ‘Palestinian Occupied Territories’. The original can be found here.