+972 Magazine / February 20, 2023
A new law, passed by an overwhelming Knesset majority, is part of an ongoing process of entrenching separate legal systems for Jews and Palestinians.
On February 15, the Knesset approved a new bill titled “Law for Revoking the Citizenship or Residency Status of a Terrorist Operative Receiving Compensation for Committing an Act of Terrorism, 2023”.
According to the law — which passed with a decisive majority of 94 Knesset members from both the governing coalition and the opposition bloc, and only 10 votes against — the Israeli interior minister will be authorized to revoke a person’s citizenship or residency if they are convicted of and jailed for committing a “terrorist act,” provided that they received funds, or someone else received funds on their behalf, from the Palestinian Authority (PA). The law further permits the expulsion of these individuals to the occupied West Bank or Gaza Strip if they meet the above criteria.
In a preliminary reading on the same day, the Knesset plenum approved another bill aimed at deporting the families of “terrorists,” which the Ministerial Committee on Legislation had endorsed earlier that week. It is difficult to determine whether this bill, which the attorney general has opposed, is likely to progress or not; however, MKs from both the coalition and opposition have voted in favor of it, just as they did with the other law.
It is impossible to overstate the extent to which the new law is intended to violate fundamental rights — specifically those of Palestinian citizens of Israel and Palestinian residents of East Jerusalem. The right to citizenship is known as the “right to have rights,” from which the most basic civil rights are derived.
Denying this foundational right is an extreme measure and will result in persons becoming stateless, in violation of the 1961 UN Convention on the Reduction of Statelessness. Revoking the residency of Palestinians in East Jerusalem also contravenes the Fourth Geneva Convention as, under international law, East Jerusalem is an occupied territory that has been illegally annexed by Israel.
In addition to these violations, the new law dramatically expands the grounds under which the measure of expulsion may be used. This will serve as an additional punishment on top of any sentence that an individual receives through Israel’s criminal legal system, thus constituting a double punishment that contravenes the most basic principles of the rule of law, including the finality of legal proceedings.
Israel already has a legal mechanism — which is problematic in itself, and which was recently upheld by the Supreme Court — by which the state can revoke the citizenship of Palestinians in Israel, as well as additional legal mechanisms for revoking the residency of Palestinians from East Jerusalem. But the new law passed last week is expected to significantly expand the scope of these mechanisms and, in doing so, to further entrench two separate legal systems for Jews and Palestinians on both sides of the Green Line.
What was the method of citizenship and residency revocation under Israeli law until now?
According to an amendment to the 2008 Citizenship Law, the Israeli interior minister is authorized, upon the recommendation of the attorney general and with the approval of a district court, to revoke the citizenship of individuals who have committed an act that amounts to “breach of loyalty to the State of Israel.”
This amendment was examined by the Supreme Court for the first time in a ruling handed down in July 2022, in the case of Alaa Zayoud, which concluded that the amendment meets Israeli constitutional standards even if revocation means someone is left stateless, provided that the interior minister grants them permanent residence in Israel. Although the state ultimately did not strip Zayoud’s citizenship at the end of that case, the court’s ruling affirmed and legitimized the law’s racist provision, which seriously violates human rights and contravenes international law, relying on Israel’s legal standards alone.
A 2018 amendment to the Entry into Israel Law led to a similar arrangement with regard to revoking the residency of Palestinians from East Jerusalem. This came after the Supreme Court accepted a petition from members of the Palestinian Legislative Council, the parliament of the Palestinian Authority, whose residency permits had been denied; rather than issuing a final decision in the case, the court gave the Knesset an opportunity to establish new legislation that would pass constitutional muster. The Knesset then passed a law — which has yet to be reviewed by the Supreme Court but is active to this today — that allows the interior minister to revoke a person’s residency after consulting with a committee of the minister’s creation.
There are additional avenues by which Israel revokes the residency of Palestinians from East Jerusalem. In 1988, a panel of Supreme Court justices, headed by Aharon Barak, upheld the revocation of the residency of Mubarak Awad, an academic and founder of the Palestinian Centre for the Study of Nonviolence, on the grounds that he had moved his “center of life” away from Jerusalem. In the wake of this court ruling, many hundreds of similar such cases followed.
What constitutes “terrorism” or other offenses that could be grounds for revocation?
Both the Citizenship Law and the Entry into Israel Law contain categories of offenses that constitute a “breach of loyalty,” and conviction under these categories gives the interior minister the ability to approve citizenship or residency revocation. The first category is committing an “act of terror,” as defined in the 2016 Counter-Terrorism Law; soliciting or assisting with such an act; or playing an active role in a “terrorist” organization or a designated “terrorist” organization. The second category refers to acts that constitute “treason” or “serious espionage” under the penal code. In cases of revocation of citizenship, there is also a third category: acquiring citizenship of an “enemy state” (the list of “enemy states” is the same one used to prohibit Palestinian family unification).
The frequent use of the phrase “terrorist” in Israeli discourse — both in the context of revoking citizenship and residency, and in the context of additional punitive measures against Palestinians — requires some additional explanation as to how Israeli law defines an “act of terror.” There is no set list of crimes that are defined as falling within the ambit of the Counter-Terrorism Law, but rather a sort of filter that labels certain crimes as “terrorism” if they meet a combination of criteria: having a motive, and committing or threatening to commit an act. Under these very broad criteria, an act such as throwing stones at a demonstration may be considered “terrorism.”
Deeming a crime an “act of terror” exposes accused persons to harsher treatment in the legal process and in punishment, and may also be applied retroactively to prior criminal convictions. After the enactment of the Counter-Terrorism Law, Adalah warned that the law’s definition of “an act of terror” was overly broad and vague. The paper stated that, based on this definition, the Counter-Terrorism Law could be inclusive of acts committed by Palestinians during legitimate political protests, whether against the occupation or the discrimination, racism, dispossession, and oppression they face.
There are several indications that this definition was designed in order to apply sanctions selectively against Palestinians. For example, official data from the state prosecutor’s office regarding the events of May 2021 confirm that the proportion of Palestinian defendants accused of committing an “act of terror” was significantly higher than that of Jewish defendants in comparable circumstances.
Moreover, the revocation clause in the Citizenship Law clearly targets Palestinians. As part of the proceedings in the Zayoud case, the Interior Ministry provided data to the Supreme Court showing that, out of the 31 instances in which the state considered revoking citizenship, not a single case related to a Jewish citizen. Despite this, Chief Justice Esther Hayut stated in the ruling that, given only three requests to revoke citizenship were submitted by the Interior Minister for court approval, there were not sufficient grounds to find discrimination.
How does the new law change the current legal framework?
The law passed last week will add another mechanism for citizenship and residency revocation, in addition to enabling expulsion to the West Bank or Gaza. Under the new mechanism, those eligible for revocation will include individuals convicted and imprisoned for committing an act of “terror” or an act of “treason,” and where it is “proven to the satisfaction of the interior minister” that the accused received money from the Palestinian Authority “for breach of loyalty.”
The law also includes a presumption that whoever receives payment from the PA is not considered stateless because they have status in the PA. This is a clear attempt to circumvent the obligation, imposed by the Supreme Court on the interior minister in the Zayoud ruling, to ensure that the person whose citizenship is revoked will retain permanent status, so as to not render them stateless.
The law will also not require the approval of the attorney general but rather that of the justice minister, and will require that the court respond to the interior minister’s request for revocation within 30 days, unless the court is convinced that the request is unjustified. In cases where permanent residency is revoked, the individual will have a window of only seven days to oppose the punishment. According to the law, those who have gone through the procedure described will be deported when their incarceration has been completed.
Why is this a racist law?
These “breach of loyalty” offenses are based on the definition of an “act of terror” which is itself a way to differentially target Palestinians. The conditions that must be met in order to result in expulsion are similarly directed blatantly at Palestinians, by virtue of the requirement that they have received funds specifically from the PA.
Supporters of the law have stated that it is intended to prevent Palestinians convicted of an act of terror, or members of their families, from being “rewarded” for their act. However, under existing law, the Defense Minister already has the ability — which is frequently utilized — to confiscate such funds transferred from the PA, so it is difficult not to conclude that the conditions of this law are intended to achieve a different goal.
Only recently, an investigative report exposed the fundraising network of an Israeli organization that financially supports the killers of former Prime Minister Yitzhak Rabin, the Dawabshe family, Shira Banki, and other Jews convicted of nationalist crimes (the organization was initially registered under the name of National Security Minister Itamar Ben Gvir’s current chief of staff, Hanamel Dorfman). These Jewish-Israeli prisoners, and others like them, will not be subject to the sanctions imposed by the new law.
Racist distinctions of this kind have already been upheld in a ruling by Judge Noam Sohlberg, in response to a petition regarding the demolition of the home of five Palestinians. Sohlberg rejected a claim that there was a discriminatory policy being used, and claimed that the reason houses of Jews who killed Palestinians were not being destroyed “is because in the Jewish sector there is not the same need for the general deterrence that is the basis for home demolitions.” Regarding the killings of the Dawabshe family and Muhammed Abu Khdeir, the judge claimed that when such killings occurred, there was “powerful and decisive condemnation from wall to wall in the Jewish sector, which there is not on the opposing [Palestinian] side.”
In the early discussions of the Knesset committees, the newly passed law’s purpose was stated openly. For example, Likud MK Hanoch Milwidsky said: “I don’t feel any need to justify myself on the fact that I am in the state of the Jews that prefers Jews,” and further clarified his meaning in response to Ta’al MK Ahmad Tibi: “I prefer Jewish killers to Arab killers.”
During the same discussion, Otzma Yehudit MK Limor Son Har-Melech, who was among the initiators of the law, even criticized the idea that receiving money from the PA would be a condition for expulsion. In her view, citizenship should be revoked “for any terrorist who kills a Jew on the grounds that he is a Jew,” adding that the appropriate punishment for such a crime should be death.
Otzma Yehudit’s coalition agreement with Likud includes legislating the death penalty for “terrorists,” which is also intended to exclusively target Palestinians; the agreement makes clear that it will only be applied to “acts of terrorism aimed at harming the State of Israel as the state of the Jewish people.”
The new law should not be seen as anything other than part of the ongoing process of entrenching separate legal systems for Jews and Palestinians under Israeli control. This trend was further highlighted in the current government’s guiding principles and in the coalition agreements signed upon its establishment, which included a long list of additional measures to further expand the separate law enforcement and penal systems.
In a position paper published by Adalah, which analyzes the new coalition’s foundational documents, it is made clear that these documents see Jewish supremacy and racial separation as fundamental tenets of the Israeli regime. These characteristics of apartheid are in full view in the new revocation law.
As one of the bill’s initiators, Shas MK Yinon Azoulai, said when explaining its purpose to the Knesset: “May all who rise up against us understand: we are the lords of the land — the Jews — in this state.” And as Prime Minister Benjamin Netanyahu put it at the start of a government meeting last week, the new law serves “to further deepen our roots in our land.” But it is important to remember that the support for this law, like many other racist laws in Israel, comes from every Zionist faction in the Knesset, coalition and opposition alike.
Adalah – The Legal Center for Arab Minority Rights in Israel is an independent human rights organization and legal center; Adalah works before Israeli courts and international decision-makers to promote and defend the human rights of all Palestinians subject to the jurisdiction of the State of Israel