In 2011, the Palestine Liberation Organization (PLO) circulated a draft Palestinian Nationality Law as part of its efforts to achieve international recognition of Palestine’s status as a state. The Nakba Files spoke to Dr. Mutaz Qafisheh, the dean of Hebron University’s College of Law & Political Science and a principal drafter of the bill. Qafisheh is the author of a study on the international law foundations of Palestinian citizenship.
What are the goals of the draft Palestinian Nationality Law?
A Nationality Law is integral to any independent state in the world, and Palestine has become a state. It may not be a full member state of the UN, but it is still a state as far as international law is concerned. A pillar of any state is the population and how it defines the population. How does a state define its people without a Nationality Law? The Nationality Law lays out the basic principles by which a state defines its population and its citizens (consistent with international law – and in sharp contrast to Israeli law – the terms “citizenship” and “nationality” are interchangeable here). Based on this, the state can also define the rights of people, the rights of its citizens.
The law would help to undo or cope with the statelessness and dispossession of the Palestinian people. Under Article 11 of this draft law, anyone holding an identity document from the Palestinian National Authority would ipso facto become a citizen of Palestine. Other Palestinians are eligible to apply for citizenship if they so choose, including Palestinians from East Jerusalem (including those whose residency in that city was revoked by Israel), refugees from the 1967 war, refugees from the 1948 war, and Palestinian citizens of Israel.
The law would also permit Jews who held Palestinian citizenship under the British Mandate and who lived in what is now the West Bank and Gaza Strip to apply for citizenship. Although I would not expect many of them to do so, it is important to draw a contrast with Israel’s discriminatory and exclusionary nationality laws.
For years, the Palestinian Authority has issued documents that are widely referred to as passports. How is this different from what the draft Nationality Law envisions?
Currently, the Palestinian Authority issues passports in accordance with the Oslo Accords that are limited in two important ways. First, they are only issued to residents of the West Bank and Gaza Strip living under the jurisdiction of the Palestinian Authority. Therefore, the majority of the Palestinian people are ineligible for these documents, including refugees living outside Palestine, residents of East Jerusalem, Palestinians in Israel, and so on.
Second, the PA passports are considered travel documents only rather than proof of nationality. The lack of nationality documentation creates many problems for Palestinians throughout the world. In some countries, you must provide proof of nationality for basic functions such as obtaining marriage or death certificates and PA passports are not always accepted as proof of nationality. Some states do not recognize PA passports as according diplomatic protections to Palestinian diplomats. Further, PA passports cannot be used as evidence of nationality for Palestinians seeking employment as employees of UN organizations.
As you explained, the draft Nationality Law is an integral part of the project of building a Palestinian state. At the same time, the statehood project has come under criticism as an impossible undertaking without first achieving liberation from Israeli occupation. Moreover, the idea of giving Palestinians citizenship could provide a pretext for Israel and the Arab states to further marginalize or even expel their own Palestinian populations and for the world to declare that the refugee problem has been “solved.” How would you respond to such criticisms?
I would like to emphasize two points. First, a Nationality Law would provide concrete assistance to Palestinians throughout the world by improving their legal status. Palestinians would no longer have to be stateless. Now that Palestine’s statehood is well-established as a matter of international law, the draft nationality legislation would help to resolve some of these ambiguities and provide concrete legal protections to any Palestinian who needs it, and not simply to those living under the PA.
Second, I am aware that there is a debate over whether Palestine should confer its nationality on Palestinian refugees, and whether this would benefit or harm them. I should emphasize that the law is also designed to take into account the very different circumstances in which our people find ourselves. For Palestinians living outside the PA, the law offers them citizenship, but it does not impose it. We are aware that there are situations where people may not wish to take on a Palestinian passport because it could undermine their situation, such as countries that do not allow for dual nationality. At the same time, any Palestinian who finds himself or herself in the PA can enjoy all the rights and privileges of citizenship regardless of whether they formally apply for Palestine nationality.
In discussions of law and Palestine, 1948 and 1967 are often discussed as pivotal years. In the commentary to the law there is another crucial date people may be less familiar with: 6 August 1924. Can you discuss the significance of this date for Palestinian nationality?
Palestinians have long ignored this date, 6 August 1924, but it is the date that Palestine officially became an independent territorial entity, thanks to the Treaty of Lausanne. This was the treaty that formally ended World War I for Turkey, and it was the treaty in which Turkey formally relinquished all claims to Palestine. Palestine became a separate state in terms of international law on that date, even if not a self-ruling one. And on that date the Palestinian people as inhabitants of this territory acquired their own distinct nationality. Under Article 30 of the treaty, any Turkish citizen habitually resident in a territory separated from the former Ottoman Empire automatically becomes a citizen of the territory’s new government. This provision marked the birth of Palestinian nationality as a matter of international law.
One year later, the British translated Article 30 into local law by enacting the 1925 Palestinian Citizenship Order in Council. The British implemented the Order in a way that left thousands of Palestinians abroad – especially in Latin America – unable to apply for citizenship, rendering them stateless. This act was a sort of a mini-Nakba before the 1948 Nakba, effectively cutting off many Palestinians from their homeland. In contrast, Britain facilitated the entry of European Jews who did not have pre-existing ties to the country, in line with a broader policy to facilitate Zionist immigration and to reduce the Palestinian Arab population.
For this reason, Article 15 of the draft Nationality Law allows anyone born in Palestine as an Ottoman subject and who was disenfranchised by the 1925 Citizenship Order to apply for Palestinian citizenship.
What were the reactions to the draft Nationality Law?
I drafted this legislation upon the request of the PLO and it was discussed in small focus groups by officials from various PLO factions and institutions and other experts in 2011 during the campaign for Palestine’s UN membership. There were diverse opinions on this law among the PLO factions. We did not manage to generate a consensus. For example, there were concerns that extending nationality to Palestinians in Jerusalem would give Israel a pretext to withdraw their residency and expel them from the city altogether. I believe the law can be carefully crafted to address that concern and that in any event, Israel’s ability to find pretexts for its actions is always there and this should not be a reason to forego the other benefits of this law.
There has not been further discussion or progress on this draft law since 2011. The PLO decided to prioritize other actions, such as applying for membership in international organizations. This is not surprising given the Palestinian leadership’s lack of a strategic vision for state-building and institution-building. There is no plan for reforming or reunifying the security services, for reforming the judiciary, for new elections, or for reconciling the split between the West Bank and Gaza Strip. Nevertheless, I feel the lack of movement on this draft law is unfortunate. If you claim to be building a state, there is no law that is more important than one defining and regulating nationality.