A Separation Wall Through the Heart

By Joanne Mariner, FindLaw.com. Posted August 15, 2003.

Imagine having to decide between your country or your spouse. With the passage of Israel's new law on marriage and citizenship, thousands of Israeli Arabs now face this painful and unjust choice.

The law, passed on July 31, bars Palestinians who marry Israelis from becoming citizens or residents of Israel. It formalizes a policy that has been effect since September 2000, when the current violence in Israel began.

Israelis of Palestinian origin have long complained that they feel like second-class citizens. This new law could be a defining step toward making their second-class status official.

Differential Treatment

Israeli law already extends an absolute preference to Jews over members of all other ethnic or religious groups in obtaining Israeli citizenship. The Law of Return, together with the country's Citizenship Law, grants automatic citizenship to Jewish immigrants to Israel. Not only do the country's legal rules benefit Jews over other potential immigrants, they give Jews priority over Palestinians who fled or were driven from the country during the 1948 and 1967 wars.

The law that was just passed, however, goes an important step beyond the previously existing rules. Rather than granting a preference to Jews over all other groups, it specifically singles out Palestinians for adverse treatment.

The new law is thus racially discriminatory against persons of a single nationality. Aside from Palestinians, all other persons who marry Israelis are eligible for citizenship. But the law's discriminatory character extends beyond its impact on the Palestinians who are barred from obtaining citizenship. It is also discriminatory in its impact on Israelis.

The overwhelming majority of Israeli-Palestinian marriages are between Israeli citizens of Palestinian origin (known as Israeli Arabs), and Palestinians living in the West Bank and Gaza. By blocking the reunification of families split between Israel and the occupied territories, the law will have a devastating impact on the family life of Israeli Arabs.

Israeli Arabs who are married to Palestinians will now have to abandon Israel if they want to live with their families. Indeed, the prospect of their emigration may have helped spur the law's passage. As Israelis prepare for the establishment of a Palestinian state, nationalist legislators are anxious to ensure the geographic separation of Jews and Palestinians.

Security or Demography?

Nearly 20 percent of Israelis are of Palestinian origin: an estimated 1.2 million people. Given the Zionist ideal of Israel as the state of the Jewish people, and the demographic realities that this ideal presupposes, many Israeli Jews have watched the growth of Israel's Palestinian population with an anxious eye.

Until recently, the immigration of Jews to Israel more than outweighed increases in the population of Israelis of Palestinian origin. Benefiting from the Law of Return, some 2.7 million Jews immigrated to Israel between 1948 and 1998. At present, however, with the Jewish exodus from Russia having ended, the prospect of continued large-scale Jewish immigration to Israel seems unlikely. The demographic issues that alarm Jewish nationalists are now increasingly apparent.

Because of such concerns, it has never been easy for Palestinians from the occupied territories to obtain permission to join their spouses in Israel. But it was with the outbreak of violence in Israel in September 2000 that the issuing of residence permits to Palestinian spouses was effectively frozen. This de facto suspension of permits was ratified by the Israeli cabinet in May 2002, and was just now formalized into law.

Supporters of the new law, known as the "Nationality and Entry into Israel" law, justify it as a means to prevent terrorist attacks. According to Israeli government minister Gideon Ezra, a member of the right-wing Likud party, there have been some twenty lethal attacks in the last few years involving Palestinians who had gained entry to Israel through marriage.

Ezra also acknowledged, however, that over 100,000 Palestinians from the West Bank had obtained Israeli identity cards since the 1993 Oslo agreement. If the prevention of terrorist attacks were the goal, one would expect the government to seek out a more compelling surrogate for terrorist intent: 20 out of 100,000 people is hardly a close match. Nor is punishing thousands of people for the crimes of a few a very fair approach to stemming terrorism.

Discrimination and Citizenship under International Law

Under international law, Israel is not free to discriminate. The Convention on the Elimination of All Forms of Racial Discrimination prohibits discrimination on the basis of race, color, descent, and national or ethnic origin. Although the treaty does not generally apply to countries' legal rules on citizenship and naturalization, it does bar discrimination against particular nationalities.

In other words, while the treaty may not bar Israel from adopting citizenship rules that benefit a particular group -- as it did with the Law of Return -- it does bar Israel from discriminating against Palestinians specifically.

Recognizing the Israeli law's incompatibility with international norms, Human Rights Watch and Amnesty International sent a joint letter to the Israeli parliament in July to urge legislators to reject it. As the letter stated, in blunt terms, "The proposed law is discriminatory. It targets a category of individuals purely on the basis of nationality or ethnicity, and prevents them from living with their spouses and children."

Even Israel's most reliable supporters appear concerned about the law. Last week, U.S. State Department spokesman Philip Reeker was called on to comment on it. Although Reeker seemed reluctant to use the word "discrimination," he acknowledged that "the new law singles out one group for different treatment than others."

Perhaps more surprisingly, Abraham H. Foxman, the director of the pro-Israel Anti-Defamation League, issued a statement implicitly criticizing the new law. Noting that the law will expire after one year, Foxman said that the ADL hopes that Israel's parliament will review the law when it expires "and explore other methods to ensure Israel's security needs."

Lessons from History

Jews have good reason to oppose discriminatory citizenship laws, having historically been a target of them.

In European countries during the 18th and 19th centuries, Jews and other minority populations were often excluded from citizenship. It was only after the French Revolution that France became the first European country to extend full citizenship rights to Jews.

Adrien Jean François Duport, the Frenchman who proposed the motion on Jewish citizenship, spoke eloquently about the unfairness of singling out ethnic or religious groups for adverse treatment. Discussing the right to citizenship, he concluded: "Jews cannot alone be excluded from the enjoyment of these rights, when pagans, Turks, Muslims, even Chinese -- in short, men of all sects -- are granted them."

Last week, a legal organization for Arab minority rights challenged the constitutionality of the new Israeli law in a petition filed with Israel's High Court of Justice. In considering the law, perhaps the court will recognize that Palestinians, too, should not be excluded from rights that others enjoy.

Joanne Mariner is a human rights lawyer and columnist for FindLaw.com.

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