May 15 2019
Do all Palestinians have the right to citizenship in whatever state rules historic Palestine? After all, they or their recent ancestors were bonafide citizens of British-Mandate Palestine. Doesn’t the right of return to their homes now in the state of Israel entail the right of re-enfranchisement? Could citizenship now be declared for all Palestinians in a state claiming legitimate sovereignty over all of historic Palestine? Is a state ruling historic Palestine democratically legitimate which refuses them return-as-citizens return?
These are the questions I addressed in a recent academic article, which Mondoweiss has generously allowed me to summarize, which appeared in a Special Issue of the international-law journal Global Jurist on Israel’s legitimacy, or lack thereof, and which grew out of the conference on that topic that was twice banned, for political reasons, by the University of Southampton but finally held in March 2017 in Cork, Ireland.
The article’s basic idea is that for any territory and any state ruling with sovereignty in that territory we can identify a legitimate citizenry. Which people have a convincing claim to be included, or at least a claim stronger than the rest of humanity in general? Both ethically and legally it is beyond dispute that inclusion, or political belonging, should adhere to those who are tied to that land by family or ethnic ties or by birth – known as jus sanguinis and jus soli. Over the years states customarily accept, in addition, certain immigrants who arrive as workers, refugees or businesspeople.
I look mainly at the ethical, political and historical reasons all Palestinians have sufficient ties to the land of Palestine to be citizens in whatever state rules there, touching only briefly on the international law of state succession which stipulates that when one state replaces another in a given territory, it must accept the previous state’s citizens as its own. In the case of Palestine in 1948, this applied to all resident Palestinians plus the roughly one-third of the immigrant European Jews who had availed themselves of British-Mandate Palestinian citizenship under the Mandate Citizenship Order of 1925. The citizenship-excluding executed by Israel shortly after its founding was thus illegal, meaning that under international law all Palestinians now hold valid but inactive citizenship.
The obligation to grant citizenship to conquered people was indeed recognized by Israel, however reluctantly and incompletely, during its first half-decade when its non-Jewish permanent, historical residents were enfranchised. Today these people and their descendants make up some 20 percent of Israel’s total citizenry and about 13 percent of all Palestinians. A further legal argument dealing with the Palestinian collective rather than with individuals is that the indigenous residents always had the right of self-determination in their territory, a right however denied them, arguably illegally, by the British during the years 1918-1948.
A further 29 percent of Palestinians live in the Gaza Strip and West Bank. There is increasing support for their inclusion as equal citizens in the state – call it Israel – that now rules the whole territory between the river and the sea. This step would greatly improve the legitimacy of that state’s citizenry, but that state would still have the fatal defect of excluding the 58 percent of Palestinians residing outside historic Palestine.
It is this right to re-enfranchisement of these absentees – variously called refugees, exiles or returnees – which has been absent from the political discussion and which reflects their physical absence from Palestine. Even academic research supporting inclusive citizenship concerns itself exclusively with immigrants already resident in the territory or state in question, whether former slaves, the non-propertied, women, or legal as well as illegal immigrants. This academic and political invisibility should be corrected by placing this right of re-enfranchisement on the agenda right next to the right of return.
Why, after all, are these people outside Palestine, rendering them even less visible and empowered than those in Gaza and the West Bank? Because they were ethnically cleansed – an additional fact reflecting badly on the legitimacy of Israel since exclusion for reasons one cannot help – in this case ethnicity and religion – can with good reason be called racist.
The right of return of Palestinians to their places of origin now in Israel is both well-researched and uncontested in ethics and international law, for instance in many conventions and UN Resolutions (foremost General Assembly Resolution 194 of 11 December 1948). Crucially, the right of return to whatever state rules Palestine entails the right to citizenship in that state, and vice-versa: Return without citizenship would be blatant apartheid, and the right to re-enfranchisement is empty without the possibility of residence in one’s own country.
At any rate, my focus is on this considerable majority of Palestinians, and specifically on their potential citizenship claims in Palestine, not in their present countries of residence, where most are stateless. This vision of a restored citizenry, empowered in all of historic Palestine, does not contradict the several initiatives to unite and register in one citizenry, or nationality, all Palestinians wherever they live – most likely under the aegis of the Palestine Liberation Organization. The state of Palestine after all today exists, both virtually and in the eyes of about 135 other states, however limited its power and territorial extent. The momentarily open yet urgent question is whether this state will revive its claim, pre-1988, to legitimate sovereignty in all of historic Palestine.
Israel is with good reason worried about its democratic legitimacy. The first part of democratic legitimacy judges a state’s relation to those who are already its citizens, and here Israel scores well concerning its Jewish, and very poorly concerning its non-Jewish, citizens. It however utterly fails by the second criterion, noted by political scientists from Aristotle on yet lying on the edges of democratic theory – namely whether its citizenry includes all those who ought to be citizens.
A general principle has emerged within political philosophy that whoever is significantly affected by the laws of a state ought to be included, but what constitutes significant, serious, or existential affectedness? One necessary condition is close ties to the state’s territory, easily fulfilled by Palestinians: They were formerly citizens, they are involuntary exiled, they have relatives and close friends within historic Palestine, and their long unbroken political and cultural history in Palestine is obvious. In their disenfranchised exile they are moreover significantly affected by poverty, political dispossession and psychological yearning. And not least, the need for real atonement for the humiliation and injustice visited upon them has, if anything, grown stronger over the past seven decades and belongs psychologically to the daily life of Palestinians.
For subjective as well as objective reasons, then, it is easy to show that Palestinians are existentially affected by Israel. In a sense they are all its subjects. This is what gives them the right to political belonging between the river and the sea. And to earn democratic legitimacy, whatever state controls Palestine must grant their citizenship claims.
The wheel must not be re-invented, for return as citizens has happened for instance for Huguenots, Germans, Kosovans, Rwandans and even Native Americans, and is today strongly urged for Rohingyas, Armenians and Chagos, and is notably unchallenged in the case of present Syrian refugees.
One caveat is that this does not mean citizenship in a state defining itself as “Jewish.” In fact, should all of the roughly 12 million Palestinians become citizens, they would comprise a majority of the state, and it would both ideologically and practically cease to be Jewish and no longer be called, at least exclusively, Israel.
Since Zionism’s sine qua non is a Jewish majority, this vision of legitimate citizenry must be, and is, argued against by scores of Israeli academics, some of whom regard themselves as ‘liberal’ or ‘left’ Zionists. But let us compare the two vying visions of citizenship in Palestine. The one reigning in Israel defines citizens by their ethnicity (race) and/or religion – an apartheid ethnocracy. The other vision is based on ties to the territory, long, uninterrupted and recent ties of livelihood and feeling, regardless of race or creed, including Moslems, Christians and Jews, with separation of religion and ethnicity from the state. Politicians and world opinion must choose between these two.
Israel’s legitimacy can be judged on several grounds, for instance its foundation upon the colonial efforts of Britain and its own military violence, or its dependence for its Jewish identity on its ongoing denial of the non-abrogable right of return. We should now in addition start judging its democratic legitimacy on this question of who belongs in, and to, Palestine.
Finally, my article is an attempt to reach out to academics working in the field of citizenship studies. To date they have almost entirely ignored the Palestinian refugees – a curious phenomenon paralleling their marginal status in trauma and literature studies. After all, in terms of numbers of refugee years (an average of perhaps 3 million per year for 70 years) the Palestinians dwarf all other groups, and the conflicting demands of Palestinians and Western-supported Zionism have meant chronic bloodshed and humiliation for the entire past century. Even the field of refugee studies pays relatively little attention to citizenship aspects – perhaps, of course, because most refugees from other territories do have uncontested citizenship in the countries they have fled.
Political or citizenship theory is a mature field, with human-rights principles firmly in place, but such is academia’s fear of challenging the Jewish state in Palestine that the Palestinian disenfranchised stay under the radar. I hope that other researchers – Masters students, perhaps – will criticize, shore up and further develop the ideas presented here, resulting in a body of work that the relevant academic fields will be obliged to answer.