International Law

Palestinian Spouses, Israel, and Human Rights


In 1949, U.S. Supreme Court Associate Justice Robert H. Jackson warned about turning the U.S. Constitution's Bill of Rights into a national "suicide pact." On similar grounds, the Israeli Supreme Court earlier this month rejected a challenge to the 2003 "temporary" Citizenship and Entry into Israel Law. Israeli Justice Asher Grunis, writing for the majority of the Court, found that human rights are "not a prescription for national suicide."

The Israeli law at issue bars Palestinians from the Occupied Territories and nations hostile to Israel from living with their spouses who reside in Israel. Unlike others who marry Israeli citizens, these spouses are not granted Israeli citizenship and residency permits.

Proponents contend the law is a security measure because those barred come from areas that deny Israel's right to exist as a nation. Given that its enemies threaten another Holocaust, and the tiny nation has been scarred over the years by numerous terrorist attacks, is unsurprising that security is an important issue when it comes to immigration.

However, critics of the law contend that it is in fact a human rights issue. The law in essence either separates spouses or is a de facto push for the spouse residing in Israel to leave. The security argument is, according to these critics, a mere fig leaf to cover the true purpose of an "apartheid" law, which is to keep Israel "Jewish" instead of permitting Arabs to immigrate and have families within the country that alters the identity of the nation.

Whether or not this is the law's purpose, there is a gap between the birth rates in Arab and Israeli families. To permit Palestinians to join spouses in Israel to raise families would quickly change the demographic destiny of the country. Within a few decades, the majority religion in Israel would be Islam and Jews by religion and ethnicity would be a distinct minority.

And, as can be seen in countries where Islam is the predominant religion (Iran, Iraq, Egypt, etc.), religious minorities face serious persecution by the Moslem majority. One can understand why Israel is reluctant to risk a "Jewish" future on uncharacteristic religious tolerance by those who still deny the right of the country to exist, and who have a long-standing and current record  of oppressing Jews, Christians and other minorities who happen still to live in their own ancestral homelands which now happen to be subject to the control of one of the countries listed at the beginning of this paragraph.

It should be noted that few countries permit foreign spouses entry as a matter of right based upon marriage. Indeed, international marriages are frequently viewed with additional scrutiny because the institution has been degraded by those using it to traffic in mail-order brides, thinly veiled human trafficking, "green card" sham marriages, and other abuses of traditional notions of what constitutes a marriage.

Yet the Citizenship and Entry into Israel Law seems to be an overly blunt instrument of the rule of law to use regardless of the motives behind it. Strict immigration security prescreening of Palestinian spouses, together with a requirement that such immigration applicants take a loyalty oath to the State of Israel that affirms the right of the Jewish state to exist, would seem to be a reasonable alternative to arbitrary denial of entry to spouses based upon geographic region of origin. Surely, the human rights aspect of marriage could be protected through analysis on a case-by-case basis instead of carte blanche denial of entry.

Recommended Reading

'Citizenship law decision a stain on Israeli law', Jerusalem Post (Jan. 12, 2012)

Human rights equated with national suicide, Al Jazeera (Jan. 12, 2012)