Evelyn Gordon

Analysis from Israel

In 2006, three Palestinian residents of East Jerusalem were elected to the Palestinian parliament on behalf of the Hamas-affiliated Change and Reform party, while a fourth was appointed to the Palestinian cabinet on behalf of that party. Israel responded by revoking their Israeli residency rights.

To most people, this would sound like a no-brainer. Many democracies view serving in a foreign government as grounds for revocation of citizenship because holding a policy-level position in one country’s government is considered to require a level of commitment to that country, which conflicts with one’s loyalty to the other country. Indeed, both America and Israel have such rules for their own citizens in policy-level positions; that’s why, for instance, when Michael Oren became ambassador to the U.S., he had to forfeit his American citizenship, despite the fact that America and Israel are close allies.

But these four Palestinians weren’t just serving in a foreign government; they were doing so on behalf of Hamas – a terrorist organization sworn to Israel’s destruction. This, as the Israeli government correctly argued in court, constituted a massive “breach of trust” toward Israel.

Yet the court, in a 6-3 ruling, decided otherwise. Although the Entry into Israel Law allows the government to revoke anyone’s residency rights “at its discretion,” it said the law shouldn’t be used to revoke their residency for “breach of trust.” Why? Because most East Jerusalem Palestinians were born in Israel and had lived there all their lives, so they deserve greater protection than migrants, who have previously lived elsewhere and whose roots in Israel are therefore shallower.

That East Jerusalem Palestinians merit greater protection than, say, labor migrants, is obviously true. Israel formally annexed East Jerusalem back in 1967 so, logically, most of them should be citizens rather than permanent residents. That they aren’t is due to a unique catch-22: Israel cannot unilaterally grant them citizenship without outraging the international community, which wants them to be citizens of a future Palestinian state.

Most East Jerusalem Palestinians are reluctant to exercise their right to apply for citizenship because doing so is viewed by other Palestinians as treason against the Palestinian cause. The result is an entire class of permanent residents who, as the court rightly said, deserve to be treated more like citizens than permanent residents in many respects.

But in this particular case, the court’s otherwise valid distinction is completely irrelevant. After all, the case wasn’t about ordinary East Jerusalem residents, who, in the absence of evidence to the contrary, could reasonably be assumed by the court to view Israel as their primary home. It was specifically about people who chose to serve in a foreign government on behalf of a terrorist organization, and who thereby declared that their allegiance to this foreign entity supersedes their allegiance to Israel.

If you can forfeit citizenship for serving in a foreign government, you can certainly forfeit permanent residency. After all, Hamas officials surely don’t deserve more rights than Israeli ones. Yet that’s exactly what the court gave them: Hamas officials can now retain dual nationality even though their other nationality is Israel’s bitter enemy, while Israeli officials cannot, even when their other nationality is Israel’s close ally.

Moreover, it’s eminently reasonable to expect people who choose to serve in a foreign government to move to that government’s jurisdiction, unless some unusual obstacle prevents them. In this case, no such obstacle existed, as evidenced by the fact that two of them did relocate to Ramallah after losing their Israeli residency (the other two were arrested by Israel on unrelated grounds).

Even the majority justices appeared to realize how irrelevant their argument actually was. In a truly stunning statement, Justice Uzi Vogelman, who wrote the main opinion, said, “Our interpretative decision didn’t focus on the petitioners’ case specifically, but on an interpretive question of general applicability to residents of East Jerusalem.” Quite how any court can decide a case without focusing on that case specifically is beyond me.

Ostensibly, the case at least has limited application. After all, how many East Jerusalem Palestinians are going to become Hamas legislators of cabinet members? But in reality, the implications are broad, because if even swearing allegiance to a foreign government on behalf of a terrorist organization committed to Israel’s destruction isn’t enough to make a Palestinian lose his Israeli residency and its attendant benefits, what on earth would be? Nothing I can think of. Thus, Hamas supporters in Jerusalem will now be emboldened to step up all kinds of activity on the organization’s behalf, secure in the knowledge that they need not fear expulsion from the country as a consequence.

The court’s judicial activism impedes the government’s ability to set policy in almost every walk of life, as I detailed in Mosaic last year, and several rulings over the past few months rightly outraged many members of Israel’s ruling parties. But last week’s ruling may have been a tipping point: In response, Justice Minister Ayelet Shaked and her Jewish Home party submitted legislation to curb the court’s excesses. Whether it will pass remains to be seen. But this outrageous ruling in defense of Hamas legislators amply shows why it should.

Originally published in Commentary on September 18, 2017

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The Red Cross Destroys the Laws of War

The International Committee of the Red Cross, self-appointed guardian of the laws of war, has embarked on an exciting new online project: destroying the very laws it ostensibly seeks to protect. Of course, the ICRC would put it differently; it would say it’s teaching the laws of war. The problem is that the “laws” it teaches aren’t the actual laws of war, as codified in international treaties, but a made-up version that effectively denies countries any right of self-defense against enemies that fight from positions inside civilian populations. And it is thereby teaching anyone unwilling to concede the right of self-defense that the laws of war should simply be ignored.

When Israel Hayom reported on the “Don’t Be Numb” project last week, it sounded so outrageous that I suspected reporter error. But the project’s website proved even worse.

The website has four sections – “behavior in war,” “medical mission,” “torture” and cultural property.” But the big problem is the first one, which consists of three questions users must answer correctly to receive a “medal of integrity.”

Question number one: “You’re a military commander. The enemy is hiding in a populated village across the front line. Can you attack?” The correct answer, according to the website, is “no.”

This is simply false. The laws of war do not grant immunity to enemy soldiers simply because they choose to hide among civilians, nor do they mandate avoiding any military action that might result in civilian casualties. They merely require that civilians not be deliberately targeted (the principle of distinction), that reasonable efforts be made to minimize civilian casualties, and that any such casualties not be disproportionate to the military benefit of the operation (the principle of proportionality).

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