On Israel’s State Identity

Basheer Al Zoughbi

Introduction

One of the most fundamental conceptual premises was centered on how to define the identity of the new state. Theodor Herzl provided in ‘The Jewish State’ booklet that the proposed state will be for the Jewish people and in any event Herzel’s Jewish state, according to him, did not mean to abolish nor prejudice the rights of other non-Jewish nationals. He writes ‘Every man will be as free and undisturbed in his faith or his disbelief as he is in his nationality. And if it should occur that men of other creeds and different nationalities come to live amongst us, we should accord them honorable protection and equality before the law.’[1] Balfour’s Declaration seem to espouse the afore quote. The United Nations General Assembly resolution 181 originally recommended the establishment of a Jewish state by name however the new state was named Israel thus invoking the biblical name of Jacob.

State-actors recognize other state-actors and the recognition is not extended to the ethno, religious, and/or linguistic structure of that state even though a state name per se may reveal implicitly, explicitly, exhaustively or non-exhaustively the type of its composition and structure. In any event, states have a right to change their names but any state does not have a right to call upon other states to additionally recognize its ethno–religious composition or call upon them to implicitly or explicitly exclude or restrict the rights of certain ethno-religious groups of people who have legal ties to one’s statehood. Throughout the history, a number of states have changed the name of their statehood simply because a state has a right to change its name. For example, Thailand was formerly known as Siam, Sri lanka was formerly known as Ceylon and Myanmar was formerly known as Burma. However, Greece has a dispute with the former Yugoslav Republic of Macedonia over the latter state’s name.

There are also a few states in the world that officially impute to their statehood the religious structure in their official communications, inter alia, the Islamic Republic of Afghanistan, the Islamic Republic of Iran and the Islamic Republic of Pakistan. One can deduce that the majority of the nationals of such states belong to a certain religious group of people and such imputation may also reflect the type of internal law of these states. The fact that other ethnic, religious and /or linguistic groups of people continue to live in such states or other states in general must not be prejudiced by any religious imputation and from an international law point of view, minority rights must be guaranteed. Article 27 in the International Covenant on Civil and Political Rights (ICCPR) provides that ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.’[2]

Israel’s Identity

Israel is in an identity crisis as it has been promulgating the ideology of its Jewish identity and endeavouring to impose it on the Palestinian people and further calling upon  the de jure state of Palestine to recognize it as a ‘Jewish’ state. The Palestinian Liberation Organization (PLO), did recognise Israel as a state under international law and this by itself is sufficient as there is no conventional or customary international norm that demands states who have recognized other states to additionally recognize their ethno-religious structure. In addition, Article one of the Third Draft Constitution for a Palestinian State explicitly codifies the Palestinian State boundaries on the territories occupied by Israel in 1967 : ‘Palestine is an independent, sovereign state with a republican system. Its territory is an indivisible unit within its borders on the eve of June 4, 1967 and its territorial waters…’[3] Hence, Israel must not expect from the de jure state of Palestine to recognize any religious imputation to its statehood. Second, if Israel feels the need to impute to its statehood the Jewish character then it must take into account that this ethno-religious imputation cannot and will not prejudice the rights of minorities in Israel and the rights of Palestinian refugees to return to their original homes having been expelled and caused to flee. In any event, Palestinian refugees are and certainly ought to be a significant component of Israel’s population since they have the legal ties to their properties and families.

On the Questions relating to Settlers of German Origin in Poland Advisory Opinion, the PCIJ proclaimed that ‘Private rights acquired under existing law do not cease on a change of sovereignty…  It can hardly be maintained that, although the law survives, private rights acquired under it have perished.’[4] Palestinian private right in Israel could not and will not perish under customary and conventional international law. The Arab Palestinian population found themselves in 1948 as minorities in the new formed state, refugees in a situation they could not control and a place they definitely could not relate to as a hometown and/or home country and under a geographical separation of the West Bank and Gaza Strip. The Arab Palestinian people who remained in the newly established state or those who fled or were expelled during the conduct of hostilities are all an integral part of the permanent population of the Israeli state thus all retain their legal ties to their hometowns.

It is true that states remain the only actors in determining their own nationality laws, in other words, who is to be considered a national and who is not remains within the sovereign rights of each state. However, in determining nationality laws states should feel legally obliged to take into consideration any of their customary and/or conventional obligations. The Permanent Court of International Justice (PCIJ) stated in the Question Concerning the Acquisition of Polish Nationality in 1923 that ‘Though, generally speaking, it is true that a sovereign State has the right to decide what persons shall be regarded as its nationals, it is no less true that this principle is applicable only subject to the Treaty obligations…’[5] Moreover, the PCIJ provided in the case concerning Nationality Decrees Issued in Tunis and Morocco (French Zone) that

… it is enough to observe that it may well happen that, in a matter which, like that of nationality, is not, in principle, regulated by international law, the right of a State to use its dis­cretion is nevertheless restricted by obligations which it may have undertaken towards other States. In such a case, jurisdiction which, in principle, belongs solely to the State, is limited by rules of international law.[6]

Hence, and especially with regard to its permanent population, Israel is legally obliged under the customary and conventional provisions of international law not to disregard the legal ties and rights of Palestinians who were expelled and compelled to flee. Israel is under obligation to enact legislation to secure all Palestinian refugees their right of return within the framework of Israel’s national laws as well as its nationality laws. In Nottebohm (Liechtenstein v. Guatemala), the ICJ provided that ‘According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.’[7] In other words, Arab Palestinian people who were expelled and fled from Israeli controlled area in 1948, and their descendents, have and will retain to have legal ties to that piece of territory that formed Israel’s statehood. The politico–legal character of nationality which includes membership of a state has to be distinguished from the ethnological-sociological part.[8] Palestinians though ethnically different to Jews, they nonetheless continue to retain their lawful claim in regard to the politico-legal membership regardless of the name of the Israeli state.

As long as Israel continues to assert its Jewish imputation to its statehood while ignoring the Arab Palestinian private rights in Israel per se then this will remain among others a severe obstacle for realising a viable peace, runs contrary to customary human rights and humanitarian international law and democratic norms. Israel’s Jewishness implies excluding and restricting Arab Palestinian rights and a clear-cut preference for a Jewish dominance over the Arab Palestinian population. Israel’s claim that it is a democratic state is erroneous as its statehood  among others is based upon racial discrimination. Israel’s law of return (1950) and its nationality law (1952) are profound examples of legislations that impede the Palestinians’ inalienable right of return; the purpose and objective of which is to secure its racial discrimination policies.

Basheer AL-Zoughbi (LL.M, M.A, M.A) is a former Lecturer in Public International Law, Birzeit University Research Officer. Basheer also worked for FG as M.E  Special Rapporteur.


[1] Herzl, Theodor The Jewish State, (1896).

[2] Article 27 , The International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.

[3] Constitution of the State of Palestine, Revised third draft 4 May 2003. Quoted in Brown, Nathan J.  The Third Draft Constitution for a Palestinian State: Translation and Commentary, Palestinian Centre for Policy and Survey Research, 2003, p.6.

[4] Questions relating to Settlers of German Origin in Poland,  PCIJ, Ser. B., No. 6, 1925.

[5] Question Concerning the Acquisition of Polish Nationality, PCIJ, Ser. B., No. 7, 1923.

[6] Nationality Decrees Issued in Tunis and Morocco (French Zone),  (PCIJ) 1923

[7] Nottebohm Case (second phase), Judgement of April 6th, 1955: I.C. J. Reports 1955, p. 4.

[8] Panhuys, H F Van. The Role of Nationality in International Law, The Netherlands: Leyden, A. W. Sythoff, 1959, p.37.

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