The Occupier Demands Loyalty from the Occupied: Background and Implications of Israel's "Breach of Loyalty" Bill

Since its 1967 occupation of East Jerusalem, Israel’s legal and administrative actions in Jerusalem have sought to assert it as a sovereign part of Israel with a solid Jewish majority. To this end, Israeli policies encourage Jewish-Israeli settlement while forcibly transferring the indigenous Palestinian population. One of its most effective policies facilitating forcible transfer is the legal regime that governs Palestinian residency rights in Jerusalem.

After occupying the West Bank and Gaza Strip in 1967, Israel redrew the municipal boundaries of Jerusalem and issued permanent residency documents to all the indigenous Palestinian inhabitants. These “Jerusalem IDs” as they are colloquially known, confer permanent residency status that can be lost for a number of reasons, including if Palestinian Jerusalemites receive citizenship in another country, or if they fail to show that their “center of life” is in Jerusalem.

In general, permanent residency is the status given by a state to foreigners who decide, and are permitted, to permanently reside in that state. It is also frequently a transitional status from non-citizen to citizen.  This status assumes that the person is a citizen of, and his or her home is in, another country.  This is not the case for Palestinians of occupied East Jerusalem; Jerusalem is their present-day and ancestral home.  In contrast, any Jew from anywhere in the world can enter Israel and, under the “Law of Return of 1950,” automatically become an Israeli citizen, and move to occupied East Jerusalem.

From 1967 to today, Israel has revoked at least 14,000 Jerusalem IDs from Palestinian residents of the city, usually because they lived abroad for an extended period of time, acquired a nationality, or failed to show that their “center of life” was in Jerusalem. Following the second intifada, Israel sought to begin revoking the residency of Palestinians that had breached the loyalty of the state. Following a several-year legal battle that is emblematic of Israel’s use of its judiciary to legitimize illegal, internationally wrongful, and discriminatory practices, the Knesset just passed a law that will allow for the Jerusalem ID holders to lose their permanent residency status if they do not show “allegiance to the state.”

Israel’s policy goals in occupied East Jerusalem are clear: to maintain the Jewish demographic majority in Jerusalem.  This ambition was officially stated in a 1973 report by the inter-ministerial Committee to Examine the Rate of Development for Jerusalem.  In this report the recommendation was made that the “demographic balance of Jews and Arabs must be maintained as it was at the end of 1972.” The balance at that time was 73.5% Jewish and 26.5% Palestinian.  Since 1973, this policy goal has been restated numerous times in Israeli policy briefs, news releases and even formal development plans. Official Israeli “development” plans for Jerusalem in 2020 sought a 70% Jewish and 30% Arab demographic split in the city. Achieving these ends necessarily mean that Israeli policies will have to forcibly transfer Palestinians, who currently make up almost 40 % of the Israeli-defined municipality’s population.

From 1967 to today, over 14,000 Palestinians have lost their Jerusalem ID. Once this is revoked, they can no longer access Jerusalem and lose their ability to reside there. For many, they are forced to permanently settle outside of Jerusalem, whether it is in the West Bank or outside of historic Palestine.

In 2006, the Israeli Interior Ministry once again expanded its powers under the “Entry into Israel Law” by invoking Article 11’s termination procedures to revoke the residency status of four Palestinian Jerusalem ID holders. In the 1995 Shiqaqi case, the Israeli Supreme Court had permitted the Interior Ministry to expand its Article 11 powers to strip Palestinian Jerusalem ID holders of their legal status if they failed to show that their “center of life” was Jerusalem, which itself built off the 1988 Awad Case that introduced the “center of life” idea and confirmed the applicability of the “Entry into Israel Law” to Palestinian Jerusalem ID holders, who the case determined were permanent residents. The 1995 opened the floodgates for thousands of Palestinians to lose their residency.

The 2006 Interior Ministry decision revoked the status of four Palestinian Jerusalem ID holders, but the case was stuck in court for over a decade. In early 2016 and before the Israeli courts ruled on the issue, Israel again invoked this power to strip three 18 and 19 year old Palestinians of their IDs for throwing stones. In September 2017, the High Court of Justice held that the Interior Ministry did not have the statutory authority to strip East Jerusalem ID holders of their legal status, but postponed the application of the decision for 6 months to permit the Knesset to pass a bill to provide for the statutory authority.

The bill, which was passed and ratified on March 7, 2018, amends Article 11 of the “Entry into Israel Law of 1952” to:

1) explicitly permit the Ministry of Interior to cancel permanent residency status provided to Palestinians in Jerusalem; and

2) revoke the permanent residency status of those who have committed a “breach of loyalty to the State of Israel.”

There are three meanings of the breach of loyalty:

a) participation in terrorism, including assistance, attempt or incitement; or membership in a terrorist organization or its affiliated political parties;

b) any act of espionage that impairs national security, or treason, which includes impairing the sovereignty of the state (for Israel, the “state” includes Israeli sovereignty over East Jerusalem; and

c) acquisition of citizenship or right to permanent residency of certain Arab or Islamic countries.

Israel occupies East Jerusalem and international humanitarian law obligations (Article 45 of the Hague Regulations; Article 68(3) of Fourth Geneva Conventions) prohibit the occupying power from requiring the inhabitants of the occupied territory to swear allegiance to the hostile power. Permitting the population of the occupied territory to continue to reside in their home only if they maintain loyalty to the occupying power, is a facial and flagrant violation of these specific IHL obligations. In addition, it violates one of the core tenets of the law of occupation: that the occupying power provide public order and govern the territory as a trustee and in the interests of the occupied population.

Israel frequently uses its internal legal system to legitimize illegal and internationally wrongful acts. In this case, the interaction between the High Court of Justice, the Interior Ministry, and the subsequent Knesset Bill exemplify the complicit role its judiciary plays. The HCJ decision of September 2017 appears to protect Palestinian rights by preventing their ID revocation in the moment and the case at hand, but the decision left it for the Knesset to act. This created a legal framework and blueprint for what the government could do to effectively revoke IDs in the future.

The HCJ decision prompted and pre-emptively legitimized government action from the Legislative branch on the issue—the Legislative branch being the more legitimate public organ to enact public policy changes like this than the courts. Had the courts permitted the revocation of the IDs, it may have appeared to just rubber-stamp Executive actions; but by prompting the Legislative branch to act, it appeared to resemble the checks and balances of a liberal democratic nation-state, while encouraging buy-in from all three branches of government in complicit in illegal and internationally wrongful acts.