NGO Monitor Analysis (Vol. 1 No. 12) 20 August 2003

NGOs Condemn Israel for Citizenship Rules, Ignoring Context and Impact

The purpose of the legislation, which was passed for a one-year trail period, is to control the inflow of Palestinians qualifying for Israeli citizenship. As serious analysts have noted, this issue arose against the background of the decades long ethno-national conflict and the extreme violence of the past three years. In the past decade (since the beginning of the Oslo process), 200,000 Palestinians have received citizenship under family unification provisions. This constitutes an increase of approximately 20% in the Arab population of Israel in this period, and a major change in the politically and culturally sensitive population balance.

The wider debate that surrounds the amendment poses important questions for all democratic societies, particular in the context of the delicate equilibrium and interaction between individual and collective cultural rights. As the world's only Jewish state, (compared to many Arab, Moslem and Christian states), Israel has the natural right to adopt policies necessary to maintain its unique historic and cultural identity. In addition, many Palestinians have declared their intention to use the demographic weapon to overwhelm Israel from within, and this dimension cannot be ignored when considering the impact of the movement of a large number of Palestinians to Israel via marriage.

None of these issues were mentioned in the NGO campaign against this law. Moreover, the policy of blanket condemnation of Israeli policy is illustrated in the eye-catching headline of the Human Rights Watch report on this issue, -- " Don't Outlaw Family Life." This is a blatant distortion intended to obfuscate the real issue of cultural identity and collective rights.

In contrast to the a-priori condemnation from these NGOs, Prof. Ruth Gavison (former president of a major Israeli NGO - the Association for Civil Rights in Israel -- and a member of the International Commission of Jurists) wrote "The justice of the amendment to the Citizenship Law is anchored in maintaining the Jewish People's right to self-determination. … The citizen of one country who chooses to bind his life with that of another person who is not eligible to reside in that country must take into account that carrying on life together can be done only in another country. …. a citizen's right in this context is only that his request will be dealt with without invalid discrimination …." As Gavison emphasizes, "The amendment specifies that this is a unique group [Palestinians who reside in the territories], whose family unification requests may justifiably not be dealt with in the same manner as those of other groups."

In analyzing this amendment, Prof. Gavison declares that "whoever believes that it is justified for it to be a Jewish state, must accept that it is permissible, and maybe even obligatory, for it to maintain the conditions which will allow for its continued existence …. The idea of a Jewish state is justifiable for reasons based on security and the well being of the community, and also on cultural and identity grounds. This entails the Jewish state being in control over migration into the country, including ensuring that there is a Jewish majority through legitimate means, and preserving a Jewish-Hebraic popular culture. It includes also ensuring the full rights of minorities, but at the same time ensuring that the minorities are not allowed to de-legitimate the continuation of the State of Israel as a Jewish state. Under present circumstances, these points should provide a rational basis for singling out the Palestinians who are residents of the territories vis-a-vis emigration policies and family unification."

In contrast, these core issue are entirely ignored in the blanket and politically-motivated condemnations of the NGOs.

The NGO press releases also failed to even mention the use of fictitious marriages to obtain citizenship, which is an issue that is not unique to Israel. In other countries, including those which place themselves at the forefront of universal human rights issues, and which do not face the existential threats that are part of the Israeli environment, there are also limitations on acquisition of citizenship.

Finally, the role of democracy and judicial review in Israel are at least as active and robust as is the case in other Western democratic countries. Following the Knesset debate and vote, the Issues of family unity and other civil rights issues related to the amendment will be fully examined in appeals before the Israeli courts.

In guaranteeing human and cultural rights for all, the rights of individuals have to be weighed carefully against collective rights, including the implications for national survival and security. But despite their commitment to "universal human rights', these NGOs -- HRW, Amnesty International, and Adalah (funded, in part, by the New Israel Fund) ---- ignore this complex balance. Their intense public relations campaign which uses language designed to continue the demonization of Israel, is entirely political. The time for a change in this anti-human rights policy, on the part of both the directors of these groups and their supporters, is long overdue.

Gerald M. Steinberg

Appendix

The full text of the FAMILY UNIFICATION IN TWO STATES

The justice of the amendment to the Citizenship Law is anchored in maintaining the Jewish People's right to self-determination.

The amendment to the Citizenship Law which was approved on the last day of the Knesset's [summer] session faces Israel with a major challenge - moral, political and legal. It determines that applications by Palestinians who reside in the territories to be united with their spouses and families in Israel will no longer be done according to the general principle for family reunification requests, as long and difficult as it may be. The relevant considerations will not deal only with the personal and particular aspects of the one applying to receive residency and citizenship by virtue of family unification but with systemic and general aspects as well. A Palestinian residing in the territories and the Israeli citizen who is a member of his family will no longer have the right to family unification as before.

Arab and international organizations have already condemned the new law as racist and discriminatory, and as infringing on the right to carry on family life. Even in the US, it is being said that the law must be checked to see whether or not it meets the necessary standards vis-?-vis the principle of non-discrimination. And this is only the beginning. There is no doubt that the High Court of Justice will be asked to rule on the claim that the law is unconstitutional, so we can expect tensions within the legal system and in relations between the legislature, government and the courts.

The right to maintain family life, with all its importance, is not doing the work here. The citizen of one country who chooses to bind his life with that of another person who is not eligible to reside in that country must take into account that carrying on life together can be done only in another country. True, most countries - Israel among them - make it easier for their citizens to provide residency and citizenship to close family members who are not citizens from the outset, but a citizen's right in this context is only that his request will be dealt with without invalid discrimination or irrelevant considerations.

There is no doubt that the new law is based on ethnic classification, suspect at first glance, i.e. Palestinians who reside in the territories. The amendment specifies that this is a unique group, whose family unification requests may justifiably not be dealt with in the same manner as those of other groups. The law's constitutional and moral validity are based on the persuasiveness of this claim (I will not discuss here the important question whether the provisions of the law meet the constitutional requirement of proportionality).

Some seek to justify the invocation of this suspect classification based on neutral reasons of "security." I think that this claim is not persuasive. The real possible justification lays in its being part of the effort of ensuring Israel's future as a state in which the Jewish people can realize their rights to self determination against the background of the existing conditions in the area at this time. A Jewish state must not discriminate between its citizens, and it also cannot discriminate against those who ask to reside in it, even if the person does not have an entrenched right to do so. But whoever believes that it is justified for it to be a Jewish state, must accept that it is permissible, and maybe even obligatory, for it to maintain the conditions which will allow for its continued existence, as long as they do not harm the rights of others, both those living in it and outside it.

The idea of a Jewish state is justifiable for reasons based on security and the well being of the community, and also on cultural and identity grounds. This entails the Jewish state being in control over migration into the country, including ensuring that there is a Jewish majority through legitimate means, and preserving a Jewish-Hebraic popular culture. It includes also ensuring the full rights of minorities, but at the same time ensuring that the minorities are not allowed to de-legitimate the continuation of the State of Israel as a Jewish state. Under present circumstances, these points should provide a rational basis for singling out the Palestinians who are residents of the territories vis-a-vis emigration policies and family unification.

Anyone who advocates a stable solution of two states for two peoples cannot demand recognition of the Palestinian right for family reunification within the borders of the State of Israel, irrespective of numbers or the nature of the relations between the communities. Generally, Palestinian families should unify in their state, and Jewish families should unify in theirs. This principle will help to stabilize the independent migration of the two nations, and will reduce the danger of deteriorating into civil war or irredentism in the two states. Such stability in itself will help to maintain both individual and group rights and in dealing with family unification requests on a humanitarian and individual basis, as is desirable.

(Prof. Ruth Gavison is a full professor at the Hebrew University Faculty of Law. She was president of the Association for Civil Rights in Israel (ACRI) 1996-1999. Gavison is a member of the International Commission of Jurists and a Senior Fellow, Israel Democracy Institute, since 1997.)