© , , | ./_
Who Has the Right to Become a Palestinian
Citizen? An International Law Analysis
Mutaz M. Qasheh*
On 29 November 2012, Palestine became a State recognized by the United
Nations () General Assembly and by most States of the world. This new
status gives Palestine a set of rights, including accessing a member of interna-
tional organizations, joining universal treaties, opening embassies, and pro-
tecting citizens abroad. Indeed, Palestine has joined a number of institutions
including Educational Scientic and Cultural Organization (),
and the International Criminal Court (). It acceded to dozens of treaties,
including seven core human rights conventions and Geneva conventions on
the international humanitarian law.
As part of Palestine’s eforts to strengthen its State-building, it seeks to em-
brace a series of measures at the national level, including forming a constitution,
building institutions, reforming its legislation, and dening its citizens. In 2012,
the Palestine Liberation Organization () attempted to draft a citizenship
law. The initiative was short-lived due to ramications attached to those who
* Dean and Associate Professor of Public International Law, Hebron University College of
Law and Political Science, Palestine; he holds a PhD in International Law from the Graduate
Institute of International and Development Studies, Geneva. PhD Supervisor, University
of Exeter School of Law, ; Member of the International Law Association (),
Complementarity Committee, London; Former Human Rights Ocer at the United Nations
in Geneva, Beirut, and Ramallah. He has published six books and over 30 refereed articles in
Oxford, Cambridge, The Hague, London, Oslo, and elsewhere. Email: mmqasheh@gmail.
com or email@example.com.
United Nations General Assembly, Status of Palestine in the United Nations, Doc. //
67/19, 4 Dec. 2012.
, General Conference admits Palestine as UNESCO Member State, Paris, ,
31 October 2011.
Press Release, ICC welcomes Palestine as a new State Party, --20150401-PR1103, The
Hague, 1 Apr. 2015.
M. Qasheh (ed.), Palestine Membership in the United Nations: Legal and Practical Implications,
Newcastle: Cambridge Scholars, 2013.
Please provide footnote text
112-150_Lau et al_Qafisheh.indd 112 3/3/2017 3:38:34 PM
may qualify as citizens, implications on the status of Palestinian refugees and
the right of return, diplomatic protection, civil and political rights, residency
in the West Bank and Gaza as well as in East Jerusalem, entry into the country
while under occupation, travel, passports, and the status of Palestinians in the
diaspora and within Israel.
This article, which builds on earlier research, argues that international law
is well-equipped to provide a clear status to those who qualify as citizens of
the State of Palestine. That qualication, in order for the status to be precisely
exercised, needs to be ultimately reected in a citizenship law that may be
adopted by the State.
As citizenship is inherently related to sovereignty, any attempt to un-
derstand the current status of Palestinian citizenship should start from the
moment at which “Palestine” became a separate entity able to confer citizen-
ship, namely after the separation of this territory from the Ottoman Empire.
Under the Ottomans, the inhabitants of Palestine were Turkish citizens. The
“Palestinians” then had no particular legal status. Hence, a distinct “Palestinian
people” did not exist at the time. The “Palestinians” constituted a component
of the larger “Ottoman people”. Towards the end of the First World War, as
part of the general Turkish defeat by the Allies, the territory of Palestine fell in
1917–1918 under British occupation.
To acquire Palestinian citizenship at the outset, one was required to hold
the status of an “Ottoman subject” or citizen. The Treaty of Lausanne entered
, Draft Palestinian Citizenship Law, Ramallah, Negotiation Afairs Department,
January 2012; unpublished draft, on le with the writer.
M. Qasheh, The International Law Foundations of Palestinian Nationality: A Legal
Examina tion of Palestinian Nationality under Britain’s Rule, Leiden/Boston, Martinus
The terms “citizenship” and “nationality” are used as synonymous here.
J. Crawford, Brownlie’s Principles of International Law, 8th edn., Oxford, Oxford University
Press, 2012, 509–526.
According to Ottoman Nationality Law of 19 January 1869. R.W. Flournoy & O. Hudson
(eds.), Collection of Nationality Laws of Various Countries as Contained in Constitutions,
Statutes and Treaties, New York/London/Toronto/Melbourne/Bombay, Oxford University
Press, 1929, 598.
P. Arminjon, “De la nationalité dans l’Empire ottoman spécialement en Egypte”, Revue
générale de droit international public, , 1901, 520–567; P. Arminjon, Etrangers et proté-
gés dans l’Empire ottoman, Paris, Librairie Marescq Ainé, 1903, 81–259.
P. Ghali, Les nationalités détachées de l’Empire ottoman à la suite de la guerre, Paris, Les
Editions Domat-Montchrestien, 1934, 199–229.
112-150_Lau et al_Qafisheh.indd 113 3/3/2017 3:38:34 PM
into force and legally separated Palestine from Turkey on 6 August 1924, fol-
lowing its signing by the Allies and Turkey on 24 July 1923. Thereafter,
Ottoman citizens who resided in the territory of Palestine became ipso facto
“Palestinian citizens”. This was domestically conrmed by the Palestinian
Citizenship Order, which was enacted by Britain on 24 July 1925. The Order
regulated Palestinian citizenship until the dissolution of Palestine on 15 May
1948. From that date until now, due to the de facto sovereignties exercised over
the historical Palestine (now Israel, the West Bank, and Gaza), various statuses
have afected the inhabitants. Certain statuses emerged due to the policy
pursued and the legislative acts undertaken unilaterally by individual States,
chiey Israel and Jordan.
The number of “Palestinians” worldwide amounts to 12 million individu-
als in 2015 according to the Palestinian Central Bureau of Statistics ().
People who relate to the historical Palestine may be divided, in terms of the
citizenship features shared by each group’s members, into three broad catego-
ries: (1) the inhabitants of the occupied Palestinian territory, namely the West
Bank, including East Jerusalem, and the Gaza Strip; (2) Palestinian refugees
who voluntarily left or were forced to leave their homes in the area of Mandate
Palestine in which Israel had been established; and (3) the inhabitants of
Israel. Each of these groups comprises sub-groups.
This article will not address the status of all these persons. Rather, it is con-
ned to individuals related to the scope of the current 1967 occupied State of
Palestine, namely the West Bank and Gaza. The number of Palestinians resid-
ing in the occupied territory totals 4.62 million at the end of 2014. Although
they all linked to the same territory that was occupied by Israel in 1967, and
despite having one status under international law, their status as dened by
the authorities exercising powers in the three areas in which they reside since
May 1948 (West Bank, Gaza, and East Jerusalem) is diferent. Displaced persons
from the 1967 occupied territory have also a status linked to the territory, but
they acquired a status in their current areas of residence abroad. Each of these
four groups (West Bankers, Gazans, East Jerusalemites, and displaced persons)
will be addressed in four consecutive sections. An additional group residing in
28 League of Nations Treaty Series 13, 1924.
R.H. Drayton (ed.), The Laws of Palestine in Force on the 31st Day of December 1933,
London, Waterlow and Sons, 1934, 3404.
, Palestinians at the End of the Year 2014, Ramallah, December 2014, 13.
112-150_Lau et al_Qafisheh.indd 114 3/3/2017 3:38:34 PM
the 1967 territories, namely individuals who arrived therein from the territory
of Israel, will be discussed in the fth section.
1 Palestinians of the West Bank
The West Bankers, who number about 2.83 million at the end of 2014, include
individuals who resided in the eastern part of Palestine which become known
as the “West Bank” after the annexation of that area by Jordan on 24 April 1950.
Palestine had a special relation with Jordan. When the League of Nations
adopted the Mandate on 24 July 1922, the text incorporated the territory of
Trans-Jordan within the scope of “Palestine”. However, Article 25 of the
Mandate accorded Britain the power “to postpone or withhold application
of such provisions of this mandate as [...] it may consider inapplicable to
the existing local conditions”. On 16 September 1922, by a resolution adopt-
ed at the Council of the League, Trans-Jordan was excluded from the scope
of Palestine and the boundaries between two areas were xed. Trans-Jordan
had earlier been excluded from Palestine by Article 86 of the Palestine Order in
Council of 10 August 1922, the Constitution that Britain applied: “This Order
in Council shall not apply to such parts of the territory comprised in Palestine to
the east of the Jordan [River] and the Dead Sea”. Britain agreed on 20 February
1928 for Trans-Jordan to form an autonomous government in Amman. After
concluding a treaty of alliance with Britain on 22 March 1946, Trans-Jordan
could at last acquire its independence from Britain and detach from Palestine.
It is to be noted that the above gure of 4.62 million residing in the West Bank and Gaza
does include the refugees residing therein, who are treated as natives.
, Palestinians, above footnote 14, 23.
“The Historical Decision to the Unify the Two Banks”, in M. Qasheh, History of Law in
Palestine, Ramallah, Birzet University, 2009 (unpublished collection of documents), 171.
S. Fichelef, Le statut international de la Palestine orientale (la Transjordanie), Librairie
Lipschutz, Paris, 1932; M. Mock, Le mandat britannique en Palestine, Paris, Editions
Albert Mechelinck, 1932, 326–330. See also E.L. Rogan, Frontiers of the State in the Late
Ottoman Empire, Transjordan, 1850–1921, Cambridge, Cambridge University Press, 1999.
League of Nations, Ocial Journal, August 1922, 1107.
Memorandum by Lord Balfour, League of Nations Document No. C.66.M.396.1922.,
16 September 1922—League of Nations, Ocial Journal, November 1922, 1390–1391.
Drayton, above note, 3303.
Agreement between the United Kingdom and Trans-Jordan, Jerusalem, in P. Toye (ed.),
Palestine Boundaries 1833–1947, Durham, University of Durham, 1989, 809.
Treaty of Alliance between His Majesty in respect of the United Kingdom and His
Highness the Amir of Transjordan, London, 6 143 (entry into force 17 Jun. 1946).
112-150_Lau et al_Qafisheh.indd 115 3/3/2017 3:38:35 PM
Trans-Jordan developed a citizenship distinct from that of Palestine. To
begin, the aforementioned resolution of the Council of the League of Nations
of 16 September 1922 resolved, inter alia, that Article 7 of the Palestine Mandate
relating to Palestinian citizenship would not be applicable to Trans-Jordan.
That territory’s inhabitants were then expressly excluded from the scope of
Palestinian citizenship by Article 21 of the 1925 Palestinian Citizenship Order.
Trans-Jordan eventually enacted its own citizenship law on 1 May 1928. Article 1
of this law conferred Trans-Jordanian citizenship on Ottoman subjects resid-
ing in Trans-Jordan retroactively as of 6 August 1924—the date on which the
Treaty of Lausanne came into force. Trans-Jordanian citizenship constituted a
separate citizenship from that of Palestine in law and in practice throughout
the Mandate period. Trans-Jordanians, for example, were required to obtain a
visa to enter Palestine.
The relationship between the Palestinian and Trans-Jordanian citizenships
arose in a case before the Supreme Court of Palestine on 14 December 1945.
In Jawdat Badawi Shaban v. Commissioner for Migration and Statistics, the ap-
plicant was a Palestinian citizen and had acquired Trans-Jordanian citizenship
by naturalization. Mr Sha’ban argued that “Trans-Jordan is a territory and not a
State [...and] in any case it is not a foreign State [in relation to Palestine]”. The
Court, in a landmark decision that summarized the status of Palestine vis-à-vis
Trans-Jordan regarding citizenship, held:
Now, Trans-Jordan has a government entirely independent of Palestine.
[...] Trans-Jordan can, as in this case, grant a person naturalisation, i.e.
grant an alien or foreigner Trans-Jordan nationality which is a sepa-
rate nationality and distinct from that of Palestine citizenship. [...]
Palestinians and Trans-Jordanians are foreigners. [...] Trans-Jordan must
be regarded as a foreign State in relation to Palestine.
Thus, there are no doubts that Jordanian and Palestinian citizenships were dis-
tinct from each other before 15 May 1948 in law ad practice.
N. Bentwich, “The Mandate for Trans-Jordan”, British Year Book of International Law, 1929,
Trans-Jordan Nationality Law of 1928 (Flournoy & Hudson, above note, 274).
Immigration Ordinance, 1941 (Palestine Gazette, No. 1082, Supplement 1, 6 March 1941, 6),
M. Levanon, A.M. Apelbom, H. Kitzinger & A. Gorali (eds.), Annotated Law Reports, Tel
Aviv, S. Bursi, I, 1946, 116 (emphasis added).
112-150_Lau et al_Qafisheh.indd 116 3/3/2017 3:38:35 PM
Under British rule, the West Bank was an integral part of Palestine and did
not form a political or administrative entity. Its inhabitants were Palestinian
citizens. During the 1948–1949 war, the Jordanian army entered parts of
Palestine that were designated for the Arab State or to the international city of
Jerusalem in the United Nations Partition Plan of 29 November 1947. The West
Bank emerged as an entity after Jordan’s signature of an armistice agreement
with the State of Israel on 3 April 1949. This agreement created what has be-
come known as the “green line”, which refers to the armistice lines that were
drawn up on the maps attached to the aforesaid agreement. As it is located on
the western side of the Jordan River, this area of Palestine was de facto called
the “West Bank” as opposed to the “East Bank” of the same River, namely the
Hashemite Kingdom or the former Trans-Jordan. Jordan continued ruling the
area until 4 June 1967, when it was occupied by Israel the following day.
Gradually, during its rule in the West Bank, Jordan granted its citizenship
to the inhabitants of the West Bank, along with refugees who ended up on the
west or east banks of the Jordan River and who were prevented by Israel from
returning to their homes within Israel’s territory. On 13 January 1949, by Law
No. 56, Jordan amended its 1928 citizenship law. Article 2 of this amendment
all persons habitually residing in Trans-Jordan or in the western area that
is currently being administrated by the Hashemite Kingdom of Jordan
who hold Palestinian citizenship shall acquire Jordanian citizenship,
and enjoy all citizen’s rights and responsibilities on the same footing as
On 7 February 1949, Jordan enacted a law on passports. Article 2 of this law
gave any “Arab person holding Palestinian citizenship” the right to obtain a
Jordanian passport. Jordan conrmed the granting of its citizenship to all West
Bankers by the Nationality Law No. 6 of 2 February 1954. Article 3 of this law
Jordanian-Israeli General Armistice Agreement, 42 304 (entry into force 3 Apr. 1949).
Additional Law of 13 January 1949 of the [Trans-Jordan] Nationality Law. United Nations,
Laws Concerning Nationality, New York, 1954, 277.
Annex to Passports Law No. 5 of 1942: Temporary Law No. 11 of 1949. Jordan Ocial
Gazette, No. 970, 14 Feb. 1949, 40.
Jordan Ocial Gazette, No. 1171, 16 Feb. 1954, 105.
112-150_Lau et al_Qafisheh.indd 117 3/3/2017 3:38:35 PM
the following persons shall be considered Jordanian citizens: [...]
(2) Those who acquired Jordanian citizenship in accordance with Law
No. 56 of 1949; and (3) All non-Jewish persons who were holding
Palestinian citizenship prior to 15 May 1948 and who reside at the date of
the enactment of this law in the Hashemite Kingdom of Jordan [includ-
ing the West Bank].
Palestinians of the West Bank, via this process, were considered to be Jordanians
at the domestic level of the Kingdom. They could as such participate in legisla-
tive elections, be elected to parliament, hold public oce, become ministers,
bear passports, and be provided with diplomatic protection by Jordanian au-
thorities abroad. The West Bankers have consequently become fully-edged
This situation continued until 4 June 1967. From the beginning of the oc-
cupation until 1994, Israel closed the border with Jordan and controlled the
whole of the West Bank. No one could leave, or land in, the West Bank without
Israeli permission. The inhabitants were considered by Israel at this time as
permanent residents of the West Bank, not residents of Israel as the area had
not been annexed by Israel. The status of West Bankers then became similar to
that of citizens in terms of citizens’ rights, albeit under occupation, according
to the applicable law in the area. Israel issued orange-coloured identity cards
to the West Bankers as an indication of residency. As a result, a sort of de
facto “West Bank citizenship” was invented.
Inhabitants at the time could travel abroad using Jordanian passports. For
a number of years prior to 1994, Israel obliged those travelling abroad to re-
main outside for at least nine months. Thousands of West Bankers who trav-
elled abroad, however, were not allowed to return after exceeding the period
Order Concerning Alenby Bridge Crossing Station (West Bank) No. 175 of 30 Nov. 1967.
Israeli Army, Proclamations, Orders and Appointments (West Bank), 9, 1968, 355.
Order Concerning Identity Card No. 234 of 17 Mar. 1968 (Israeli Army, Proclamations,
Orders and Appointments (West Bank), 12, 1969, 480); and Order Concerning Identity
Card and Population Registration No. 297 of 8 Jan. 1969 (Israeli Army, Proclamations,
Orders and Appointments (West Bank), 19, 1969, 609). For a number of years during the
rst Palestinian uprising/intifada (1988–1993), Israel issued green identity cards to former
political prisoners who were held in Israeli jails as an indication that these ex-prisoners
are potential security threat. After the establishment of the Palestinian Authority in 1994,
orange cards for inhabitants of the West Bank and Gaza were replaced with green identity
cards. See below footnote 106.
J. Mohammad, Identity Card Losers, Ramallah, Palestinian Independent Commission for
Citizen’s Rights, 1998, 17.
112-150_Lau et al_Qafisheh.indd 118 3/3/2017 3:38:35 PM
of absence specied for them. Israel adopted the system of absentees; those
who left the West Bank and failed to return within three years would not be
allowed to return. Children born to West Bankers abroad would not be eli-
gible for registration as residents, and therefore lose their right of return to the
West Bank, if their parents did not register them after reaching 5 years of age.
Another group of West Bankers, chiey political activists, were deported.
Such policies created a category of West Bankers called “identity card losers”.
They virtually became refugees. Israel allowed only a limited number of
non-West-Bank residents (or West Bankers who lost their residency) to return
and obtain permanent residence under the formula of family reunication.
Others returned with the Palestinian Authority after 1994, as will be discussed
Jordan continued at the time of Israeli occupation to treat the inhabitants
of the West Bank as Jordanian citizens. West Bankers could travel abroad, i.e.
outside the Kingdom, using Jordanian passports; they crossed the West Bank
border with Jordan by employing permits for each journey. West Bankers were
allowed to reside in the territory lying to the eastern side of the Jordan River,
Order Concerning Identity Cards and Population Registration (Amendment 17) No. 1206
of 13 Sep. 1987 (Israeli Army, Proclamations, Orders and Appointments (West Bank), 76,
1990, 97). This Order was changed only in 1995 to allow registration of children born
abroad until they attain 18 years of age. Order Concerning Identity Cards and Population
Registration (Amendment 23) No. 1421 of 17 Jan. 1995 (Israeli Army, Proclamations, Orders
and Appointments (West Bank), 159, 1995, 1752). The latter Order came in the context of the
Oslo Accords. See below footnote 107.
J.R. Hiltermann, “Israel’s Deportation Policy in the Occupied West Bank and Gaza”,
Palestine Yearbook of International Law 3, 1986, 154–185; Y. Dinstein, “The Israel Supreme
Court and the Law of Belligerent Occupation: Deportations”, Israel Yearbook on Human
Rights 23, 1993, 1–26; and I.G.M. Scobbie, S.L. Hibbin, &, A. Margalit, “Palestine/West Bank
and Gaza—Israel’s Policy of Expelling Palestinian Inhabitants from the West Bank to
Gaza”, Yearbook of Islamic and Middle Eastern Law 15, 288–325.
Mohammad, Identity Card Losers, above footnote 36.
See below Section 4.
Y. Dinstein, “The Israel Supreme Court and the Law of Belligerent Occupation: Reunica-
tion of Families”, Israel Yearbook on Human Rights, 18, 1988, 173–188; and I. Brownlie,
“The Application of Contemporary Standards of International Law to Cases Involving
Separation of Husband and Wife as a Consequence of Administrative Action by the
Israeli Authorities in the Occupied Territories”, Palestine Yearbook of International Law 6,
112-150_Lau et al_Qafisheh.indd 119 3/3/2017 3:38:35 PM
to own real estate, to practise professions, and to hold public oce—just like
East Bankers/native Jordanians.
The same status continued intact until 31 July 1988, when the King of Jordan
decided to end the Kingdom’s sovereignty over the West Bank. Three weeks
later, the Jordanian Prime Minister issued instructions to ipso facto stripped
persons who were residing in the West Bank on that date from their Jordanian
citizenship. Jordanian courts upheld the King’s decision and considered West
Bankers as “Palestinians”, namely foreigners while in the Kingdom. Jordanian
passports held by the West Bankers at the time were turned into temporary
travel documents, lasting initially for two years, which did not give their
bearer citizen’s rights in Jordan. Thousands of others, particularly those West
Bankers who were residing outside the West Bank at the time of the aforesaid
1988 decision, still face such withdrawal risks. Today, Jordan grants thou-
sands of West Bankers a ve-year long temporary Jordanian passport upon
application. These passports are treated by Jordan and by most States as trav-
el documents, not as ordinary Jordanian passports with a national number.
A.F. Kassim, “The Legal Status of the Jordanian-Palestinian in Jordan”, The Right of Return
Magazine, 13(63), Badil Resource Center, Bethlehem, Aug. 2015, 8.
“Termination of Jordan’s Ties with the West Bank”, in W.B. Quandt (ed.), The Middle East:
Ten Years after Camp David, Washington, D.C., The Brookings Institution, 1988, 494.
Jordanian Prime Minster Oce, Instructions on the Detachment of Legal and Administrative
Ties with the West Bank, Amman, 20 Aug. 1988 (unpublished; a copy in le with the writer),
The writer has collected over 100 cases adjudicated by the Jordanian High Court of Justice,
between 1988 and 2014, published in Journal of the Jordanian Bar Association, with regard
to the citizenship of West Bank originated inhabitants. These cases essentially indicate
that West Bankers have become Palestinian citizens since 1988 and that these individuals
are no longer Jordanians.
Jordanian Prime Minster Oce, Instructions on the Detachment, above footnote 45, Art. 1.
West Bankers, for instance, are allowed to reside in Jordan for one month only. Ibid.,
Human Rights Watch, Stateless Again: Palestinian-Origin Jordanians Deprived of Their
Nationality, New York, 2010.
A copy of a ve-year temporary Jordanian passport, issued on Apr. 2015, is in the writer’s
Most States, such as Egypt, Syria and Lebanon, require West Bank holders of temporary
Jordanian passports to apply for an entry visa, unlike Jordanian citizens who could land
in these States without a prior visa. However, other States, like Turkey, Yemen and Tunisia,
treat temporary and permanent Jordanian passports alike with regard to entry purposes.
It should be noted that the majority of the West Bankers hold Palestinian passports, while
they could simultaneously bear temporary Jordanian passports.
112-150_Lau et al_Qafisheh.indd 120 3/3/2017 3:38:35 PM
It should be noted that Jordan’s sovereignty in the West Bank was question-
able in international law since the vast majority of States had not recognized
the Jordanian annexation. The Palestine Liberation Organization, as the legal
representative of the Palestinian people, has always considered the West Bank
to be part of Palestine.
The situation somewhat changed in 1994 after the establishment of the
Palestinian Authority, as we will discuss after touching upon citizenship in
2 Palestinians of the Gaza Strip
This group of individuals, which numbers today some 1.79 million persons,
comprises inhabitants of the part of Palestine that became known as the
“Gaza Strip” in 1948 when the Mediterranean enclave fell under Egypt’s
Although the Gaza Strip constitutes with the West Bank the Palestinian
territory occupied in 1967, Gaza has developed since 1948 a separate politi-
cal and social character. This character produced certain legal efects. Gaza,
like the rest of Palestine, was occupied by Britain from 9 December 1917 and
remained under the Mandate until 14 May 1948. During its war with Israel,
Egypt occupied the territory that has become known as the Gaza Strip, which
emerged within its current borders with Egypt and Israel after the signing
E. Sahliyeh, “Jordan and the Palestinians”, in Quandt, The Middle East, above footnote 44,
, Palestinians, footnote 14, 23.
Hereinafter referred to as “Gaza”.
As the case of the West Bank, two groups of “Gazans” will be addressed in two difer-
ent sections below: the rst is the “refugees in Gaza” who moved to the Strip during the
1947–1949 war; and the second refers to those who were displaced from the Gaza Strip (as
in the case of the West Bank) and moved to other States after the Israeli occupation in
1967 or afterwards.
In its resolution of 29 November 2012 (above footnote 1), the General Assembly rec-
ognized the territory of Palestine “on the basis of the pre-1967 borders”. Art. of the
Israeli-Palestinian Declaration of Principles on Interim Self-Government Arrangements
of 13 September 1993 (32 International Legal Materials (), 1993, 1525) resolved, inter
alia, that: “The two sides view the West Bank and the Gaza Strip as a single territorial unit,
whose integrity will be preserved”.
112-150_Lau et al_Qafisheh.indd 121 3/3/2017 3:38:35 PM
of the armistice agreement between Egypt and Israel on 24 February 1949.
Unlike what Jordan had done in the West Bank, Egypt retained its military ad-
ministration of Gaza without annexing it until 1967. In June of that year, Israel
occupied Gaza and continued controlling it directly until 1994 after the signing
of the Oslo agreement with the Palestine Liberation Organization.
Citizenship in Gaza under Egyptian administration (1948–1967) had de facto
a particular character. As Egypt had not annexed Gaza, Gaza’s inhabitants re-
tained a form of Palestinian citizenship, comparable to the citizenship that ex-
isted under the British rule in Palestine as described above. The Palestinian
Citizenship Order of 1925 continued to be applicable and the Gaza government
set up by Egypt treated the inhabitants as Palestinian citizens. Although Egypt
granted travel documents to them, Gazans needed a visa to land in Egypt. At
the time, persons could retain and recover Palestinian citizenship in Gaza.
Acquisition of Palestinian citizenship by naturalization was possible too. For
example, a non-Palestinian woman who married a Palestinian man residing
in Gaza could acquire permanent residency in Gaza and would be registered
as a Palestinian citizen naturalized by marriage, as demonstrated by natural-
ization decisions published in the Palestine Gazette, the ocial journal of the
Egypt-run government of Gaza. Citizenship was accorded to persons who
had been residing abroad and returned to Gaza. Such persons were obliged to
renounce their other citizenships as a pre-condition for obtaining Palestinian/
Gaza citizenship. Like naturalization, decisions relating to such revocations
of citizenship were also gazetted. It should be noted that this citizenship
constituted a form of anomalous Palestinian citizenship. Its nature depended
on the way in which States regarded the holders. Many States viewed the in-
habitants of Gaza as refugees because they held Egyptian travel documents
that Egypt granted to both refugees and non-refugees in Gaza. However, citi-
zenship status in Gaza produced fully-edged local efects. Its holders enjoyed
Israel and Egypt General Armistice Agreement, 42 252 (entry into force: 24 Apr.
As Britain was mandated by the League of Nations to rule Palestine, Egypt was com-
missioned by the League of Arab States to administrate Gaza. G. Surani, The Gaza Strip:
1948–1993, 2011, 9.
M. Qasheh, Nationality and Domicile in Palestine, Ramallah, Institute of International
Studies of Birzeit University, 60–62.
S. Martin, J.G. Warner, & P. Fagen, “Palestinian Refugees in Gaza”, Fordham International
Law Journal 28(5), 2005, 1457–1478.
112-150_Lau et al_Qafisheh.indd 122 3/3/2017 3:38:35 PM
citizens’ rights, including participation in parliamentary elections, holding
public oce, exit, return, and permanent residency.
In Egypt, Gazans were viewed as foreigners. However, they were treat-
ed on the same footing as Egyptians in regard to a number of social rights,
such as admission to public schools and access to public health institutions.
While abroad, Gazans were protected by Egyptian diplomatic and consular
missions—similar to the protection enjoyed by Palestinians under British rule.
Hence, Gazans at the time had a sui generis status that can be described as
“Gaza citizenship”. This anomalous status is merely one of the many anoma-
lous circumstances stemming from the absence of the State of Palestine. Such
anomalies have shaped Palestinian citizenship from 1917 until the present day;
the citizenship of the Gaza’s inhabitants was no exception.
This situation continued until 5 June 1967 when Israel occupied Gaza.
Israel then closed the borders with its territory and with Egypt and did not
allow the Gazans to leave by sea. No one could leave, or land in, Gaza with-
out Israeli permission. The Gazans were considered by Israel at that time as
permanent residents of Gaza. Their status had become similar to that of cit-
izens, albeit under occupation, as was the case in the West Bank. Israel granted
Gazans orange-coloured identity cards as proof of residency. It allowed the
Cf. the status of Palestinians in Britain before 1948 who were considered as aliens despite
holding passports issued by authorities. The King v. Ketter, England Court of Criminal
Appeal, 21 February 1939; A.D. McNair, D. Arnold & H. Lauterpacht (eds.), Annual Digest of
Public International Law Cases, London/New York/Toronto, Longmans, 1938–1940, 46.
I. Feldman, Governing Gaza: Bureaucracy, Authority, and the Work of Rule, 1917–1967, Duke
University Press, 2008.
A.F. Kassim, “The Palestinian: From Hyphenated Citizen to Integrated Citizen”, Yearbook
of Islamic and Middle Eastern Law 3, 1996, 64–84.
B. Labes, “The Law of Belligerent Occupation and the Legal Status of the Gaza Strip”,
Michigan Yearbook of International Legal Studies 9, 1988, 383–410.
Order Concerning the Closure of an Area of 6 Mar. 1985 (Israeli Army, Proclamations,
Orders and Appointments (Gaza Strip), No. 75, 1986, 3017).
Order Concerning Closure of an Area No. 1 of 14 Sep. 1967 (Israeli Army, Proclamations,
Orders and Appointments (Gaza Strip), No. 1, 1967, 39).
General Exit Permit No. 2 of 3 Jul. 1972 (Israeli Army, Proclamations, Orders and
Appointments (Gaza Strip), No. 34, 1972, 2863).
Order Concerning Identity Cards No. 406 of 25 October 1971 (Israeli Army, Proclamations,
Orders and Appointments (Gaza Strip), No. 31, 1972, 2477). These were similar to the iden-
tity cards issued in the West Bank. See above footnote 35.
112-150_Lau et al_Qafisheh.indd 123 3/3/2017 3:38:35 PM
inhabitants who applied for permits from the Israeli military commander of
Gaza to leave abroad and to return.
The situation changed somewhat in 1994 when the Palestinian Authority
was established in Gaza after the signing of the Oslo Accord as will be elabo-
In September 2005, Israel withdrew from Gaza. Israel simultaneously main-
tained its control over Gaza land border, airspace, and sea. Israel, Egypt and
the signed an agreement on 15 November 2005 placing the crossing point
between Gaza and Egypt under joint Egyptian-Palestinian administration, with
a European Union monitoring and remote Israeli oversight. After Hamas as-
sumed control over Gaza in June 2007, Israel tightened its blockade. Egypt
took control of the border crossing and unilaterally decides when to open or
to close it, often arbitrarily. In response, Gazans erected tunnels to Egypt,
which were used to smuggle goods and persons between the two sides of the
border. However, the border crossing opens from time to time. The inhabit-
ants, notwithstanding the recent diculties, have been able to travel abroad
using Palestinian passports as in the case of the West Bank.
It is to be noted that after the takeover of Gaza by Hamas, and particularly
during the period 2011–2013 (Egyptian revolution and subsequently of the rule
of Islamic Brotherhood), hundreds of people were able to land in Gaza, mostly
through tunnels erected on border. Most of these people are either original-
ly Palestinian refugees, displaced again as a result of war in Syria, or Syrian
Order Concerning the Naot Sinai Passage Terminal No. 661 of 24 Aug. 1980 (Israeli Army,
Proclamations, Orders and Appointments (Gaza Strip), No. 43, 1981, 4077). As we saw in the
case of West Bank above, thousands of Gazans were not allowed to return. Others were
forcibly deported. Israel adopted the same family reunication system as in the case of
the West Bank. This policy created a category of Gazans called “identity card losers”.
R. Shehadeh, “The Gaza Occupation: Beginnings and Endings”, Palestine Yearbook of
International Law, 14, 13–26.
S. Darcy & J. Reynolds, “An Enduring Occupation: The Status of the Gaza Strip from the
Perspective of International Humanitarian Law”, Journal of Conlict and Security Law,
15(2), 2010, 211–244, 227.
N. Erakat, “It’s Not Wrong, It’s Illegal: Situating the Gaza Blockade between International
Law and the UN Response”, Journal of Islamic and Near Eastern Law, 11, 2012, 37–84.
Gisha-Legal Center for Freedom of Movement, Rafah Crossing: How Holds the Keys, Tel
Aviv, Physicians for Human Rights Israel, 2009, 35–63, 125–132.
I. Wadi, The Palestinian Tunnels Between Gaza Strip and Sinai: A Political Geography Study,
Gaza, Islamic University, 2014 (master’s thesis).
“Ongoing Exodus: Palestinians Returning to Gaza from Syria”, The Right of Return
Magazine, 6(68), 2013.
112-150_Lau et al_Qafisheh.indd 124 3/3/2017 3:38:35 PM
refugees. While receiving assistance from the United Nations Relief and
Works Agency for Palestine Refugees in the Near East (), on de facto
basis, and from local authorities, the situation of this group of people would
remain undermined until an agreed upon solution for them is adopted or
until they return to Syria. They will constitute de facto residents of Gaza (as
Hamas accepts their residency) but it might be dicult for them to leave Gaza
or obtain travel documents or passports that enable them to leave Gaza and
return to it.
A word must be added concerning the status of the Gazans in the West Bank
and the West Bankers in Gaza. When the West Bank and Gaza were under
Jordan and Egypt rules, respectively, the two regions were practically separated
from 1948 until 1967. After its occupation of the two regions in June 1967, Israel
permitted movement between the two areas. However, Israel suspended the
movement between the two areas after the outbreak of the rst uprising (in-
tifada) in 1987. The separation has become more systematic upon the Oslo
agreement in 1994. West Bankers could not travel to Gaza, and vice versa, ex-
cept with the permission of Israel. Gazans could reside in the West Bank only
for as long as Israel determines. Israel reserved the power to deport Gazans
from the West Bank. It likewise reserved the power of granting permanent
residence to some Gazans in the West Bank, chiey on grounds of family re-
unication or public employment with the Palestinian government. After over
a decade of freeze, in August 2011, Israel allowed 1,956 persons from Gaza, who
had already been residing in the West Bank for years, the right to change their
“Syrian Refugees Flee to Relative Safety in Gaza”, The Guardian, 30 Apr. 2013, available at:
http://www.theguardian.com (last visited 21 Aug. 2015).
In June 2013, estimated the number of Palestinian refugees arriving from Syria
to Gaza at about 1,000. , “Nowhere to Go, Palestine Refugees from Syria Arrive in
Gaza”, Gaza, 20 Jun. 2013, available at: http://www.unrwa.org (last visited 21 Aug. 2015).
General Exit Permit No. 5 of 2 Jul. 1972 (Israeli Army, Proclamations, Orders and
Appointments (West Bank), 31, 1973, 1228, Art. 2); General Permit of Exit of 27 Apr. 1972
(Israeli Army, Proclamations, Orders and Appointments (Gaza Strip), 34, 1972, 2861, Art. 2).
Instructions Concerning Suspension of the General Exit Permit No. 2 of 28 March 1988
(Israeli Army, Proclamations, Orders and Appointments (Gaza Strip), 89, 1991, 9843).
Instructions Concerning the Suspension of Exit Permits from the Region No. 3 of 27 Oct.
1994 (Israeli Army, Proclamations, Orders and Appointments (West Bank), 158, 1994, 1719).
E.g. in 1996, Israel ordered Gazan students who were studying in West Bank universities
to depart to Gaza. Instructions Concerning Suspension of Entry and Stay Permits to the
Region (Students from the Gaza Strip) of 7 Mar. 1996 (Israeli Army, Proclamations, Orders
and Appointments (Gaza Strip), 165, 1996, 2014, Art. 2).
112-150_Lau et al_Qafisheh.indd 125 3/3/2017 3:38:35 PM
address to the West Bank and thereby acquire permanent residency therein.
In practice, such persons became West Bankers and were unable to travel
to Gaza without an Israeli permit. Israel also deports certain West Bankers to
Gaza and denies their return to the West Bank. Hundreds of thousands
of Gaza-registered persons who are residing in the West Bank whose residency
in that area has been approved by Israel, among whom thousands born in the
West Bank, are not immune from expulsion. Thus, the status of Gazans, as
determined and enforced by Israel, who enter and stay the West Bank without
formal Israeli-approved change of residency address resembled that of de facto
foreigners in the West Bank. This runs counter to the Oslo agreements that
regard the West Bank and Gaza as a single territorial unit, as we will see next.
Citizenship under the Palestinian Authority
After the establishment of the Palestinian Authority () in 1994 in cer-
tain parts of the West Bank and Gaza upon the signing of the Declaration
of Principles between Israel and the Palestine Liberation Organization on
13 September 1993 (“Oslo ”), and based on the Israeli-Palestinian Interim
Agreement on 28 September 1995 (“Oslo ”), the situation of Palestinian citi-
zenship changed to some extent. These two instruments, commonly known as
the “Oslo Accords”, gave the the right to issue identity cards for inhabitants
and to print Palestinian passports after notifying Israel. Yet Israel continued
controlling Palestine’s border. The inhabitants could travel using passports
but required the permission of Israeli authorities stationed at the border cross-
ing points with Jordan (West Bank) and Egypt (Gaza), as was the case before
the Accords. Palestinian passports are now recognized by most States of the
world. States grant entry visas to Palestinian passport holders and deal with
Palestinian News and Information Agency, “Civil Afairs Commission: We Got Approval
for 1956 Gazans to Change Address to the West Bank”, Ramallah, 2 Aug. 2011, available at:
http://www.wafa.ps (last visited 21 Aug. 2015).
A. Baker, “Institutionalization of the Expulsion of Palestinians Legally”, Journal of Palestine
Studies 21(84), 2010, 1–7.
HaMoked, “Information provided by COGAT to HaMoked indicates that some 35,000
Palestinians who live in the West Bank were labeled by Israel as “illegal aliens” liable for
expulsion, because their registered address is in Gaza”, 6 Jul. 2010, available at: http://
www.hamoked.org (last visited 21 Aug. 2015).
32 , 1993, 1525.
36 1997, 551.
Oslo , Art. 28, para. 7.
112-150_Lau et al_Qafisheh.indd 126 3/3/2017 3:38:35 PM
them according to the regulations governing aliens enforced in these States on
the same footing as foreigners from independent States.
A number of changes relating to Palestinian citizenship occurred after the
signing of the Oslo Accords. A joint Israeli-Palestinian police force was sta-
tioned at the border crossing points. West Bankers travelling abroad via Jordan
were required to pass through Israeli and Palestinian security checks; the
same applied to Gazans travelling abroad through Egypt. From November
1998 to October 2000, Gazans and to a lesser extent West Bankers were able
to travel abroad through Gaza International Airport, which the Israeli army
destroyed in December 2001. Also after the intifada, Israel prevented holders
of Palestinian passports from travelling through its airports—they had in fact
rarely travelled through those airports. Israel had the nal say on whether
passage was permitted at all exits from which Palestinians depart. Thousands
of inhabitants were banned from travelling abroad under security pretexts.
At the beginning of the second intifada in 2000, Israel ended the nominal
Palestinian police presence at border crossing points and retained exclusive
control over the movement of persons. However, the maintained sepa-
rate police control points near the border in the cities of Jericho (West Bank)
and Rafah (Gaza). Travellers were required to undergo Palestinian police
checks and passport registration before proceeding to the Israeli side of the
border. Passengers were required to do the same on their way back from Jordan
J.S. Estapa, Criteria for the Establishment of the Palestinian Citizenship within the Frame-
work of a Palestinian Sovereign State, Barcelona, University of Barcelona, 1997 (unpub-
A. Zimmermann, “The Nationality of the Inhabitants of the Palestinian Autonomous
Territories”, in A. Shapira & M. Tabory (eds.), New Political Entities in Public and Private
International Law with Special Reference to the Palestinian Entity, The Hague/Boston/
London, Kluwer Law International, 1999, 231–246.
Oslo , Art. , and Annex .
K. Al-Sahili & S. Abu-Eisheh, “Diagnosis of Existing Transportation Systems in Palestine
under the Current Political Conditions”, proceedings of the International Civil Engineering
Infrastructure Systems, 12–16 Jun. 2006, Beirut, Lebanon, available at: http://staf.najah.
edu (visited 21 Aug. 2015), 6.
HaMoked and B’Tselem, So Near and Yet So Far: Implications of Israeli-Imposed Seclusion
of Gaza Strip on Palestinians’ Right to Family Life, 2014, 31.
M.S. Salamah, Freedom of Movement as Basic Human Right, Hurryyat, Ramallah, 2015.
Euromid Observer for Human Rights, Restricted Hopes: On the Breach of West Bank
Palestinians’ Right to Travel by Israeli Authorities, Geneva, 2011, 10–13.
Palestinian Independent Commission for Citizen’s Rights, The Sufering of Palestinians
At Al-Karama and Rafah Crossing Stations, Ramallah, Oct. 2002, available at http://www
.ichr.ps (last visited 21 Aug. 2015).
112-150_Lau et al_Qafisheh.indd 127 3/3/2017 3:38:36 PM
or Egypt. The could prevent certain West Bankers from travelling to Jordan
by means of this procedure. Hamas, as a de facto authority, was able to operate
a similar procedure after taking over Gaza.
The Oslo Accords afected Palestinian citizenship in a number of—albeit
limited—positive ways. Thousands of persons were enabled to acquire per-
manent residency in the West Bank or Gaza and to obtain Palestinian identity
cards and passports. The persons concerned, commonly known amongst the
local population as “the returnees”, belong to ve categories: (1) ocers recruit-
ed by the from abroad (i.e. from among non-residents of the West Bank or
Gaza), mostly Palestinian refugees with Jordanian passports or Egyptian travel
documents; (2) employees recruited to work for the who were mostly
ocials; (3) “investors, for the purpose of encouraging investment”, who
are mostly Palestinian refugees from the business community; (4) “spouses
and children of Palestinian residents”; (5) “other persons, for humanitar-
ian reasons, in order to promote and upgrade family reunication”. The
granted such permanent residency on a case-by-case basis, efectively after the
approval of Israel. Israel could block any decision on the granting of perma-
nent residency, and it did so when it froze family reunication requests after
the outbreak of the intifada in 2000. In addition, the Accords dened the
citizens of the occupied territory for the purpose of participation in general
presidential and legislative elections in the West Bank and Gaza. Any resident
over eighteen years of age was considered to be a Palestinian citizen for that
purpose. Certain persons who were not recorded in the population register,
namely who did not hold Palestinian identity cards, could acquire such cards
and become permanent resident.
Oslo institutionalized population registration in the occupied territory.
In particular, the Accords recognized the identity cards issued by Israel for the
M. Qasheh, “Palestinian Legislation and the Freedom of Movement: An Appraisal in
Light of International Law”, International Journal of Human Rights and Constitutional
Studies 1(2), 2013, 110–126.
M. Qasheh, “La nationalite palestinienne selon les principes du droit local et du droit
international”, in N. Picaudou (ed.), La Palestine en transition: crise du projet national et
construction de l’Etat, Paris, National Institute for Oriental Languages and Civilizations,
Oslo , Annex , Art. 3, para. c.
The four categories are covered by Art. 28 of Oslo .
B’Tselem, Perpetual Limbo: Israel’s Freeze on Unication of Palestinian Families in the
Occupied Territories, Jerusalem, 2006.
Oslo , Annex , Art. , para. 1(g).
Art. 28, Annex .
112-150_Lau et al_Qafisheh.indd 128 3/3/2017 3:38:36 PM
population under occupation and replaced such cards with Palestinian cards
as a sign of permanent residency. The assumed responsibility for popula-
tion afairs relating to citizenship, including births, deaths, marriages, address-
es, and other matters. The received from Israel “the population registry
for the residents of the West Bank and the Gaza Strip in addition to les and
records concerning them [including] [...] records of births and deaths and the
indexes from 1918 till 1981”. The was mandated to register children under six-
teen years of age who were born abroad “if either of their parents is a resident
of the Gaza Strip and West Bank”. This situation may have constituted an
acceptance in practice of the jus sanguinis principle, whereby any child born
to a West Banker or Gazan father or mother is entitled to permanent residency,
since such residency is efectively equivalent to citizenship.
Oslo gave the , after Israeli clearance, the power to issue visitors’ per-
mits for persons from States that had no diplomatic relations with Israel.
Requests for such permits were to be led by any relative or acquaintance of
the visitor residing in the West Bank or Gaza. Such visitors were permitted to
remain in the occupied territory for a period of up to three months with the
possibility of extension for an additional four months. The could also issue
visitors’ permits to foreigners for the purpose of study or work in Palestine for
an extendable period of one year. Thousands of persons who entered the coun-
try under these provisions overstayed, especially spouses who had married
local inhabitants and formed families. While the status of many of these per-
sons was regularized through family reunication procedures whereby they
acquired identity cards and Palestinian passports, the cases of many others are
still pending. A smaller number of persons from States that have diplomatic
relations with Israel, who visited Palestine by obtaining visitors’ permits from
Law No. 2 of 8 Jun. 1999 Concerning Civil Afairs, Palestine Gazette, No. 99, 17 Jul. 1999, 6.
Art. 28, para. 12. See above footnote 38.
G.D. Collins, “Citizenship by Birth”, American Law Review 29, 1895, 385–394; J.B. Scott,
“Nationality: Jus Soli or Jus Sanguinis”, American Journal of International Law 24(1), 1930,
58–64; D.V. Sandifer, “A Comparative Study of Laws Relating to Nationality at Birth and to
Loss of Nationality”, American Journal of International Law 29(2), 1935, 249–261; I. Brownlie,
“The Relations of Nationality in Public International Law”, British Year Book of International
Law, 1963, 284–364, at 302–306.
Art. 28, para. 13.
Human Rights Watch, “Forget About Him, He’s Not Here”: Israel’s Control of Palestinian
Residency in the West Bank and Gaza, New York, 2012.
112-150_Lau et al_Qafisheh.indd 129 3/3/2017 3:38:36 PM
the , or by obtaining Israeli visas (under the 1952 Entry into Israel Law),
also overstayed and are deemed to be illegal residents. These persons, mostly
spouses of local inhabitants, may face deportation by the Israeli authorities if
they are discovered.
This tour d’horizon reveals that the Oslo Accords have not signicantly
changed the status quo relating to Palestinian citizenship that was in place be-
fore the establishment of the . The Accords broadly maintained that status
with minor modications that have afected the lives of afected individuals.
Since the Accords, Palestinian citizenship in the West Bank and Gaza has be-
come akin to permanent residence. Such de facto citizenship can be proved
and claimed by the means of two key documents: locally through identity cards
and abroad via Palestinian passports. The current situation shows that citizen-
ship may be efectively acquired by a person born to a Palestinian citizen, who
may be the father or mother or both, residing in the West Bank or Gaza, regard-
less of the place of birth—within the territory or abroad. Citizenship may also
be acquired by marriage based not on local law but on the formula of family
reunication which may be granted or withheld by Israel. There is no clear rule
relating to naturalization, but one may view the cases enumerated above
involving the granting of permanent residence as cases somewhat similar to
naturalization. No rules are in place regarding citizenship revocation. Yet
deportation of inhabitants or the denial of return to those who travel abroad
Oslo , Art. 28, para. 14.
A.K. Wan, “Israel’s Conicted Existence as a Jewish Democratic State: Striking the Proper
Balance under the Citizenship and Entry into Israel Law”, Brookline Journal of International
Law 29(3), 2004, 1345–1402.
S. Ramahi, The Sufering of Palestinians Seeking Family Reunication, London, Middle East
A.P. Morse, “Citizenship by Naturalization”, American Law Register, 18, 1879, 665–675;
H.J. Randall, “Nationality and Naturalization: A Study in the Relativity of Law”, The Law
Quarterly Review, 40, 1924, 18–30; R. Donner, The Regulation of Nationality in International
Law, New York, Transnational Publishers, 1994, 1–120; R.M. White, “Nationality, Citizenship
and the Meaning of Naturalisation: Brubaker, the United Kingdom, EU Citizens, Third-
Country Nationals and the European Union”, Northern Ireland Legal Quarterly 53(3), 2002,
W. Stein, “Revocation of Citizenship—‘Denaturalization’”, Marquette Law Review, 28,
1944, 59–74; A. Mechbat, Loss of Nationality: Comparative Study, Algiers, Institute of
Law and Administration at Algeria University, 1987; S. Lavi, “Citizenship Revocation as
Punishment: On the Modern Duties of Citizens and their Criminal Breach”, University
of Toronto Law Journal, 61(4), 2011, 783–810; A. Macklin, “Citizenship Revocation, the
Privilege to Have Rights and the Production of the Alien”, Queen’s Law Journal, 40(1), 2014,
112-150_Lau et al_Qafisheh.indd 130 3/3/2017 3:38:36 PM
could be regarded as a means of denationalization. Citizenship legislation
issued in Palestine in the past, particularly the 1925 Palestinian Citizenship
Order and the 1954 Jordanian Citizenship Law, notwithstanding that they were
never directly repealed, have been frozen since 1967 as a result of the series
Israeli polices highlighted above.
Neither Israel nor the oppose the acquisition of one or more citizenships
by permanent residents, many of whom hold other citizenships in addition to
their Palestinian passports and reside in the West Bank or Gaza. It may be con-
cluded from this fact that dual or multiple citizenship is de facto permissible
for West Bankers and Gazans. Such dual citizens (e.g. French-West Banker,
American-Gazan) are treated as Palestinians by the , not as foreigners—for
instance, in order for one to participation in elections, to own immovable prop-
erty, practising of professions, and holding public oce. Israel similarly consid-
ers Palestine’s inhabitants who hold foreign passports to be local Palestinians;
such persons cannot use their foreign passports in relation to Israel, either to
enter the West Bank, Gaza, or Israel territory. Dual citizenship goes in line with
the modern trends that consider having two or more citizenships as a human
right, which ought to be the case in the future citizenship law of Palestine.
In an attempt to pave the way for further regularization of the inhabit-
ants’ status, the drafted a citizenship law in 1995. The bill, prepared by the
Ministry of the Interior, took most of its provisions from the 1925 Palestinian
Citizenship Order and the 1954 Jordanian Citizenship Law. In its twenty-ve
articles, the draft dened who is a Palestinian, xed the modes of citizenship
acquisition, naturalization, revocation and repatriation, covered issues such as
the citizenship of spouses and children, and contained other provisions that
normally exist in the citizenship legislation of independent States. Despite
the existence of the Palestinian Legislative Council since 1996 and its adoption
V. Kattan, “The Nationality of Denationalized Palestinians”, Nordic Journal of International
Law, 74(1), 2005, 67–102.
C. Maugham, “Some Cases of Double Nationality”, The Juridical Review, 4, 1892, 135–143;
R.W. Flournoy, Jr., “Dual Nationality and Election”, Yale Law Journal, 30, 1921, 693–709;
L.B. Oreld, “Legal Efects of Dual Nationality”, George Washington Law Review, 17, 1949,
427–445; L. Bosniak, “Multiple Nationality and the Postnational Transformation of
Citizenship”, Virginia Journal of International Law, 42, 2002, 979–1004; M.A. Apostolache,
“Considerations on the Issue of Multiple Citizenship”, Journal of Law and Administrative
Sciences, 3, 2015, 14–22.
P.J. Spiro, “Dual Citizenship as Human Right”, International Journal of Constitutional Law
8(1), 2010, 111–130.
A copy of the draft citizenship law, which has never been published, is in le with the
112-150_Lau et al_Qafisheh.indd 131 3/3/2017 3:38:36 PM
of over a hundred laws, the citizenship bill has not been the subject of delib-
eration. The reasons for this are the absence of an independent State capable
of conferring its citizenship and obtaining international recognition, and the
lack of a strategy for dealing with the question of citizenship in the event of a
delay in the establishment of the State at the end of the transitional period in
Diplomatic protection is the main manifestation of citizenship abroad.
The was prevented under Oslo from exercising certain types of diplomatic
relations. Yet this restriction did not apply to the . Nor, it can be argued,
did it apply to the after the Oslo transitional period lapsed. Thus, nothing in
international law would prevent the or the from exercising diplomatic
protection on behalf of Palestinians abroad, particularly after the recognition
of Palestine as a State by the General Assembly on 29 November 2012, and
more specically after the accession of Palestine on 2 April 2014 to both Vienna
Convention on Diplomatic Relations of 18 April 1961, and Vienna Convention
on Consular Relations of 24 April 1963.
Diplomatic protection may be extended to any Palestinian citizen. It may
be exercised through bilateral agreements between the State of Palestine and
other States. Diplomatic protection takes various forms and can be exercised
at diferent ocial or informal fronts. It includes assistance to Palestinians
abroad in regard to civil status matters, such as registration of marriage, di-
vorce, birth or death, defence of persons facing criminal charges, certication
of educational diplomas obtained abroad, mediation on behalf of citizens
with international organizations in these countries (e.g. supporting the rights
of persons to obtain refugee status by intervening with the Oce of the
High Commissioner for Refugees or defending the labour rights of work-
ers employed by international companies), assistance to investors abroad by
providing technical advice, and the issuing of Palestinian passports. Despite
M. Qasheh, “Legislative Drafting in Transitional States: The Case of Palestine”,
International Journal for Legislative Drafting and Law Reform, 2, 2014, 7–34.
Qasheh, Nationality and Domicile, above footnote 59.
E.M. Borchard, The Protection of Citizens Abroad or the Law of International Claims, New
York, Banks Law Publishing, 1919; G.I.F. Leigh, “Nationality and Diplomatic Protection”,
The International and Comparative Law Quarterly, 20, 1971, 453–475; A. Pellet, “Second
Death of Euripide Mavrommatis: Notes on the International Law Commission’s Draft
Articles on Diplomatic Protection”, Law and Practice of International Courts and Tribunals,
7(1), 2008, 33–58.
Art. , para. 5.
500 95 (entry into force 24 Apr. 1964).
596 261 (entry into force 19 Mar. 1967).
112-150_Lau et al_Qafisheh.indd 132 3/3/2017 3:38:36 PM
the fact that various types of such assistance are supplied on ad hoc basis,
such protection needs to be institutionalized. It may be exercised by existing
Palestinian embassies, consulates, missions or representative oces. These
diplomatic institutions should be strengthened by hiring trained staf to exer-
cise protection as a technical function.
The Arab inhabitants of the West Bank and Gaza (unlike Jewish settlers
who hold Israeli citizenship) currently hold green-coloured Palestinian iden-
tity cards, which indicate their right of residence. Under rule, inhabitants
enjoy most citizens’ rights. As citizens, unlike foreigners, they can vote in leg-
islative elections and be elected to parliament and municipalities, hold
public service, become ministers or judges, own real estate, practice
professions, have unrestricted right to work, form political parties and
establish associations. The can, at least in theory, exercise diplomatic
protection on behalf of West Bankers and Gazans under bilateral agreements
with host countries through its representative missions abroad. After all,
citizenship was envisaged as link between the State and the individual for
the purpose of granting rights and establishing obligations, which is the
A.M. Barham, Reforming the Palestine Liberation Organization: Problems of Structure and
Programme, Nablus, Najah University, 2007 (master’s thesis), 160, 185, 196.
Decree Law No. 1 of 2 Sep. 2007 Concerning General Elections, Palestine Gazette No. 72,
9 Sep. 2007, 2, Art. 27 (parliamentary and presidential elections); Election of Local
Councils Law No. 10 of 15 Aug. 2005, Palestine Gazette No. 57, 18 Aug. 2005, 79, Art. 7
Civil Service Law No. 4 of 28 May 1998, Palestine Gazette No. 24, 1 Jul. 1998, 20, Art. 24.
Judicial Authority Law No. 1 of 14 May 2002, Palestine Gazette No. 38, 5 Sep. 2001, 279,
Law on Lease and Sale of Immovable Property by Foreigners No. 40 of 27 Jan. 1953
(applicable in the West Bank), Jordan Gazette No. 1134, 16 Feb. 1953, 558, Art. 3 (conditions
for owning real estate by non-citizens).
E.g. Legal Profession Law No. of 24 Jun. 1999, Palestine Gazette No. 30, 10 Oct. 1999, 5,
Labour Law No. 7 of 30 Apr. 2000, Palestine Gazette No. 39, 25 Nov. 2001, 7, Art. 14 (condi-
tions for non-Palestinians to work I n Palestine).
Associations Law No. 1 of 16 Jan. of 2000, Palestine Gazette, No. 32, 29 Feb. 2000, 71, Art. 1.
Palestine does reach bilateral agreements with various States on diferent matters, in-
cluding trade, agriculture, communications, health, security, etc. For instance, a series of
agreements between Jordan and Palestine were signed on 23 Apr. 2014. See Wafa, “In the
President’s Presence: Signing Cooperation Agreements Between Palestine and Jordan”,
Ramallah, available online at: http://www.wafa.ps (visited 9 Oct. 2015).
D.H. Pingrey, “Citizenship and Rights There-under”, The Central Law Journal, 24, 1887, 540–
544; M.S. McDougal, H.D. Lasswell & Lung-chu Chen, “Nationality and Human Rights:
112-150_Lau et al_Qafisheh.indd 133 3/3/2017 3:38:36 PM
case here. Yet certain citizens’ rights are still restricted due to the occupation,
including travel bans, since Israel has retained the ultimate decision on de-
partures from the West Bank, restrictions on travel within Palestine through
a system of checkpoints, prohibitions on residency or the building of homes
in certain areas, and denial of inhabitants’ right to bring their foreign spouses
into Palestine, save to exceptional cases (above).
Consequently, the status of some ve-million West Bankers and Gazans
is close, albeit not identical, to the status of citizens belonging to sovereign
States. There is, so to speak, de facto “West Bank citizenship” and “Gaza citizen-
ship”. This citizenship in certain features assimilates ordinary citizenship of
other States. It can be regarded as full citizenship for certain purposes at the
local level, including residency, election, employment, and travelling abroad
and re-admission. Palestine inhabitants may also be considered by other
States and by international organizations as citizens of Palestine for vari-
ous legal purposes, for instance in cases involving private international law
disputes, refugee status determination (including non-refoulement to Israel
or the ), be prosecuted by the over the commission of war crimes or
crimes against humanity based on the Rome Statute on the International
Criminal Court of 17 July 1998, and being elected or appointed as member/
experts representatives or staf of international or regional organizations.
The Protection of the Individual in External Arenas”, Yale Law Journal, 83, 1974, 900–998;
G. Budlender, “On Citizenship and Residence Rights: Taking Words Seriously”, South
African Journal on Human Rights, 5, 1989, 37–59; L.C. Stratton, “The Right to Have Rights:
Gender Discrimination in Nationality Laws”, Minnesota Law Review, 77, 1993, 195–239;
P. Mindus, “Dimensions of Citizenship”, German Law Journal 15(5), 2014, 735–750; U. Davy,
“How Human Rights Shape Social Citizenship: On Citizenship and the Understanding
of Economic and Social Rights”, Washington University Global Studies Law Review, 13(2),
For a survey on the citizenship of various political entities, see A. Grossman, “Nationality
and the Unrecognized State”, International and Comparative Law Quarterly, 50(4), 2001,
A.R. Dawwas, Conlict of Laws in Palestine, Amman/Ramallah, Dar Al-Shorok, 2001.
M. Qasheh & V. Azarov, “Article 1D”, in A. Zimmerman (ed.), The 1951 Convention Relating
to the Status of Refugees and Its 1967 Protocol: A Commentary, Oxford, Oxford University
Press, 2011, 537–569.
2187 90 (entry into force 1 Jul. 2002). Art. 12(2)(b) of the Statute gives jurisdiction to
the if the person accused of the crime is a national of a State party.
On 2 Apr. 2014, Palestine became party to, among other treaties, the Convention on the
Rights of the Child of 20 Nov. 1989, 1577 3 (entry into force 2 Sep. 1990). As such,
Palestine has the right to nominate a Palestinian citizen as a member to the Committee
on the Rights of the Child in accordance with Art. 43(2) of the said Convention which
112-150_Lau et al_Qafisheh.indd 134 3/3/2017 3:38:36 PM
However, certain legal efects do not ensue from such West Bank or Gaza citi-
zenship, such as the possibility of extradition of inhabitants to other States or
their repatriation to Palestine by the if necessary, the freedom of citizens
to import or export goods without Israel’s permission, and freedom to travel
abroad without Israeli control.
In the future citizenship law of the State of Palestine, the inhabitants of the
West Bank and Gaza should be collectively granted Palestinian citizenship
with automatic efect by the operation of law, or ipso facto. Palestine is under
an international legal obligation to grant its citizenship en masse to these in-
habitants. This obligation stems from the law of State succession. Palestine
is a successor State to Mandate Palestine, as Palestinian citizenship has never
been settled since the dissolution of the Mandate Palestine in May 1948. In
addition, the State of Palestine would become a successor to all the States or
entities that have exercised de facto control in the West Bank or Gaza ( Jordan,
Egypt, Israel, the , and probably even Hamas) and have taken action with
respect to the inhabitants’ citizenship. For example, if Jordan in the West Bank
or Egypt in Gaza (before 1967) or Israel in the West Bank and Gaza (after 1967)
granted de facto Palestinian citizenship, or permanent residence, to certain
persons, Palestine should conrm this status and grant citizenship to such in-
dividuals. The obligation of Palestine can be induced from the customary rule
as codied in Art. 1 of the 1999 International Law Commission’s Draft Articles
on Nationality of Natural Persons in relation to the Succession of States. This
provides, inter alia, that the “members of the Committee shall be elected by States Parties
from among their nationals” (emphasis added).
It is to be noted that Palestine, on 3 Aug. 2015, submitted an application for full mem-
bership of the as a State party. This development can be read in the light of
Palestine’s accession to the and beyond. Available online at: http://maannews.net
(visited 8 Aug. 2015).
Import and export of goods from and into Palestine are restricted based on the Protocol
on Economic Relations between Israel and the signed in Paris on 29 Apr. 1994
(33 , 1994, 696). The Paris Protocol was attached (Annex ) to Oslo .
F.A. Mann, “The Efect of Changes of Sovereignty upon Nationality”, Modern Law Review,
5, 1942, 218–224; D.P. O’Connell, State Succession in Municipal Law and International
Law, London, Cambridge University Press, 1967, , 497–542; Y. Onuma, “Nationality and
Territorial Change: In Search of the State of the Law”, Yale Journal of World Public Order,
8, 1982, 1–35; C.L. Gettys, “The Efects of Change of Sovereignty on Nationality”, American
Journal of International Law, 21, 1992, 268–278; J.L. Blackman, “State Succession and
Statelessness: The Emerging Right to an Efective Nationality under International Law”,
Michigan Journal of International Law, 19, 1998, 1160–1161.
United Nations General Assembly, Nationality of Natural Persons in Relation to the
Succession of States, Doc. //55/153, 10 Jan. 2001 (Annex).
112-150_Lau et al_Qafisheh.indd 135 3/3/2017 3:38:36 PM
article obliges each successor State to grant its citizenship to every individual
who held the citizenship of the predecessor State and who has his or her ha-
bitual residence in the successor State.
The obligation of the State of Palestine to grant its citizenship should hold
“irrespective of the mode of acquisition of that [predecessor] nationality”.
Thus, Jordan might have granted its citizenship to some foreigners in the West
Bank during its rule before 1967. Some East Jordanians might have moved to
the West Bank at that time, since residence within Jordan, east and west, was
possible as part of the local law under which all citizens were free to live in
the two sides of the Jordan River. The two groups of persons might have be-
come permanent residents of the West Bank after Israeli occupation. Israel,
too, might have granted family reunication to a certain number of non-Pal-
estinian men or women during its rule in the West Bank and Gaza. Some of
these persons are currently permanent residents, holding Palestinian identity
cards and passports just like the rest of the local population. They have well-
established legal positions, such as birth, property ownership, families, busi-
ness, etc. Similarly, the has granted permanent residency in the West Bank
or Gaza to the foreigners mentioned above. Simply put, the test for conferring
Palestinian citizenship on the inhabitants of the West Bank or Gaza in the citi-
zenship law of the State of Palestine would be the possession of Palestinian
In brief, the new Palestinian citizenship would emerge, by and large, as a le-
galization of the pre-existing de facto Palestinian citizenship in the West Bank
3 Palestinians of East Jerusalem
This group totals about 320,000 in 2015. The group, according to interna-
tional law, forms part of the West Bank population. It is, however, considered
Art. 1 of the Draft Articles reads as follows: “Every individual who, on the date of the suc-
cession of States, had the nationality of the predecessor State, irrespective of the mode of
acquisition of that nationality, has the right to the nationality of at least one of the States
According to the Israeli Central Bureau of Statistics, the number of Palestinians in East
Jerusalem amounts to 288,900 persons at the end of 2009 (Statistical Abstract of Israel
2010 (2010), 99). This number comes out of the calculation of the number of Muslims and
Christians in Jerusalem, who form the Palestinians of East Jerusalem. Taking into account
the annual population increase of 2.59 per cent for ve years (2010–2014) in the West
112-150_Lau et al_Qafisheh.indd 136 3/3/2017 3:38:36 PM
separately here due to the particular status that Israel unilaterally created for
the group after annexing East Jerusalem in 1967. The members of the group do
not hold Palestinian passports and are considered by Israeli authorities as per-
manent residents of Israel. A considerable number of East Jerusalemite Arabs
have acquired Israeli citizenship pursuant to the Israeli Nationality Law of
1 April 1952 upon satisfying its naturalization requirements: residency, Hebrew-
language literacy, and application.
A special status for inhabitants of Jerusalem (both west and east) was envis-
aged in 1938 by Britain, and then in 1947 by the United Nations Partition
Plan. “The City of Jerusalem” was intended to have a special international
status, and the citizenship of the inhabitants was formulated accordingly.
The Plan conferred Jerusalem’s citizenship with automatic efect on all resi-
dents of the city, irrespective of their citizenship, race or religion. It stated
that “all the residents shall become [...] citizens of the City of Jerusalem”.
The Arab and Jewish residents were given the right to opt for the citizenship
of the Arab State or the Jewish State respectively. In such cases, the person
in question would lose his or her Jerusalem citizenship status and become a
citizen of either the Arab or Jewish State. By the end of 1944, the settled
population of east and west Jerusalem numbered 240,880. Of these, 140,530
were Arabs and 100,200 Jews, and there were 150 others.
However, as the Plan was never implemented, Jordan annexed the east-
ern part of Jerusalem which fell under its control in 1948 and granted its citi-
zenship to East Jerusalem’s inhabitants on the same basis as the rest of the
West Bankers (above). The western side of the city became part of the State of
Israel since Israel controlled that side and granted its Jewish inhabitants Israeli
citizenship. The Arab inhabitants of West Jerusalem, like the vast majority of
Bank (, Palestinians, above footnote 14, 25), which could roughly be similar in East
Jerusalem, thus the above gure of 320,000 (as calculated by the writer).
United Nations, Laws Concerning Nationality, above footnote 31, 263.
Palestine Partition Commission, Report Presented by the Secretary of State for Colonies to
Parliament by Command of His Majesty, Oct. 1938, London, His Majesty Stationary Oce,
United Nations General Assembly, Future Government of Palestine, Doc. //181(),
29 Nov. 1947.
Ibid., Section B, Part .
Ibid., para. 11.
Government of Palestine, Survey of Palestine, Jerusalem, Government Printer, 1946, , 152.
P. Mohn, “Jerusalem and the United Nations”, International Conciliation, 28, 1950, 425–474.
112-150_Lau et al_Qafisheh.indd 137 3/3/2017 3:38:36 PM
Arabs who were residing in the area of Palestine in which Israel took control,
were expelled and became refugees.
After its occupation of the West Bank, Israel annexed East Jerusalem and
considered it an Israeli territory. The international community did not recog-
nize the annexation of East Jerusalem, adopting a number of Security Council
and General Assembly resolutions to that efect. No State does recognize
Jerusalem as the capital of Israel. However, Israel closed of Jerusalem from
the rest of the West Bank. West Bankers now require permits to enter East
Jerusalem, like other parts of Israel.
Israel did not annex the Arab inhabitants of East Jerusalem, not it conferred
its citizenship on them. Simultaneously, it did not treat them as West Bankers
or Gazans in terms of residency. The inhabitants who remained in Jerusalem
after the occupation and were counted in the Israeli census conducted on 19
June 1967, were deemed to be foreigners permanently residing in Israel. Israel
provided them with blue identity cards as a permit for permanent residency.
Inhabitants could acquire an Israeli travel document (laissez passer), which is
valid for three years, to travel abroad. Jerusalem inhabitants could participate
in the Jerusalem local (municipality) elections, live anywhere in Israel, and
acquire social security benets such as pension and health insurance. They
pay tax in the same way as Israeli citizens. But they are not allowed to par-
ticipate in the Israeli legislative elections or perform national service. If East
Jerusalemites move outside Jerusalem or exit Israel for seven years or more,
their residency in Jerusalem would be revoked. Thereafter, Israel would not
allow them to return to the city. Such persons may then become stateless.
J. Robinson, Palestine and the United Nations: Prelude to Solution, Washington, ..,
Public Afairs Press, 1947; C. Eagifton, “Palestine and the Constitutional Law of the United
Nations”, American Journal of International Law, 42, 1948, 397–399; J. Zaslof, Great Britain
and Palestine: A Study of the Problem of Palestine before the United Nations, Geneva,
Graduate Institute of International Studies, 1952 (Ph.D. thesis).
S.F. Halabi, “Jerusalem in the Court and on the Ground”, Florida Journal of International
Law, 26(2), 2014, 223–270.
J.B. Tulman, “The International Legal Status of Jerusalem”, A.S.I.L.S. International Law
Journal, 3, 1979, 39–62.
J. Quigley, “The Status of Jerusalem after the Admission of Palestine to the United Nations”,
in Qasheh, Palestine Membership, above footnote 4, 290–307.
Order Concerning General Exit Permit (West Bank) No. 3 of 19 January 1968 (Israeli Army,
Proclamations, Orders and Appointments (West Bank), 16, 1969, 598).
United Nations Oce for the Coordination of Humanitarian Afairs (), East
Jerusalem: Key Humanitarian Concerns, Jerusalem, , 2011, 12–26.
112-150_Lau et al_Qafisheh.indd 138 3/3/2017 3:38:37 PM
If East Jerusalemites move to the West Bank, irrespective of the length of
their stay, their residency in the city would be revoked by Israel. Residency and
housing in the West Bank is efectively open to Jerusalemites, as many of them
hold family connections with the neighbouring Palestinian cities; in fact thou-
sands of East Jerusalemites live and work in the West Bank without inform-
ing the Israeli authorities. East Jerusalem women who marry West Bankers
face the threat of withdrawal of their Jerusalem identity cards. If Jerusalemites’
residence in the West Bank is discovered by Israel, their residency in Jerusalem
may be revoked. Israel sometimes expels people to the West Bank and revokes
their residency in East Jerusalem for political reasons, as it did in the case of
four Palestinian parliamentarians who were removed to Ramallah in 2011.
A large number of East Jerusalemites have found themselves physically out-
side the city after the completion of the separation wall with the West Bank.
These residents are threatened with withdrawal of their identity cards and
many cards have indeed been withdrawn. In all these cases, the persons con-
cerned became stateless, having on the one hand lost their Jerusalem status
and, on the other, failed to acquire West Bank residency.
The is not in favour of granting Palestinian identity cards to East
Jerusalemites whose residency is revoked, in order to discourage Israel from
undertaking further expulsions. For the , the treatment of these persons
may sometimes difer from that of West Bank identity card holders in terms
of court and police jurisdiction—Palestinian police cannot issue trac nes
against East Jerusalemites who drive in the West Bank, for example. As state-
less persons, they are unable to travel abroad or to acquire identity papers, a
state of afairs that has adverse implications in matters such as marriage, im-
movable property ownership, registration of children, or the conduct of busi-
ness. Yet the treats such persons as ordinary Palestinian citizens in terms of,
No statistics on these cases are available as East Jerusalemites refrain from declaring that
they live or work in the West Bank due to the fear of residency’s revocation.
Palestine Today, “Jerusalem Parliamentarians: Israeli Deportation Policy”, Beirut,
Zaytouna Center, 13 Jan. 2011, available at: www.alzaytouna.net (last visited 29 Aug. 2015).
, Seven Years After the Advisory Opinion of the International Court of Justice on the
Barrier: The Impact of the Barrier in the Jerusalem Area, Jerusalem, Jul. 2011.
D.C. Jeferis, “The ‘Center of Life Policy’: Institutionalizing Statelessness in East Jerusalem”,
Jerusalem Quarterly, 50, 2012, 94–103.
A. Ruwaidi & N. Dkidik, Guide on Procedures for Residency in East Jerusalem, Jerusalem,
Civic Coalition for Defending the Palestinians’ Rights in Jerusalem, 2007.
112-150_Lau et al_Qafisheh.indd 139 3/3/2017 3:38:37 PM
for instance, the practising of professions, right to work, public employment,
The Israeli government’s practice in dealing with the inhabitants of East
Jerusalem originates from the Awad v. Yitzhak Shamir et al. case decided by
the Israeli High Court of Justice on 5 June 1988. In this case, the court held
that permanent residency status is not citizenship and may be revoked due to
residency abroad. This decision was used against the inhabitants, restricting
their departure from the city and their acceptance of foreign citizenships or
residency abroad. It was estimated that Israel revoked the residency of over
13,000 East Jerusalemite between 1967 and 2010, through a policy known as
“quiet deportation”. Family reunication for East Jerusalemites (as well as
Arab Israelis of Palestinian origin) whose spouses are from outside the city,
notably from the West Bank, is granted in rare cases. In short, the status of
“permanent residence” for Arabs in Jerusalem is not guaranteed.
The status of East Jerusalemites is anomalous. This anomaly is a result of
the Israeli policy of reducing the Arab population of the city to the absolute
minimum. Jerusalem status places the inhabitants in a peculiar (sui generis)
situation. They can still get temporary Jordanian passports without being con-
sidered as Jordanians, as in the case of West Bankers. As mentioned above,
they have the right to apply for Israeli citizenship. For the , Jerusalem inhab-
itants are considered to be Palestinians, notwithstanding minor exceptions
such as those mentioned above.
Under normal conditions, namely if East Jerusalem was to become part of
the State of Palestine, the inhabitants of the city would automatically acquire
Palestinian citizenship, as in the case of West Bankers and Gazans. However,
E.g. Art. 27(2)(b) of Decree Law No. 1 of 2007 Concerning General Elections (above foot-
note) stated that: “For the purposes of this law, the person is deemed Palestinian citizen
if: [...] Born in the Gaza Strip or the West Bank, including the Holly [i.e. East] Jerusalem”.
D. Herling, “The Court, the Ministry and the Law: Awad and the Withdrawal of East
Jerusalem Residence Rights”, Israel Law Review, 33(1), 1999, 67–105.
HaMoked, Written Submission for Consideration Regarding Israel’s Third Periodic Report to
the UN Human Rights Committee, 2010, 2, available at: http://www2.ohchr.org (last visited
29 Aug. 2015).
B’Tselem & HaMoked, The Quiet Deportation: Revocation of Residency of East Jerusalem
Palestinians, Jerusalem, 1997.
Y. Peled, “Citizenship Betrayed: Israel’s Emerging Immigration and Citizenship Regime”,
Theoretical Inquiries in Law, 8(2), 2007, 603–628; L. Bilsky, “Speaking through the Mask:
Israeli Arabs and the Changing Faces of Israeli Citizenship”, Middle East Law and
Governance, 1, 2009, 166–209.
See above, Section 1.
112-150_Lau et al_Qafisheh.indd 140 3/3/2017 3:38:37 PM
given the complex statuses that have been wilfully engineered by Israel in
order to minimize the number of Palestinians in the city, the future citizenship
of East Jerusalemites needs to be examined in detail. The granting of citizen-
ship to such persons should be carefully worded and the implications carefully
considered because Israel may use the acquisition of such status as a pretext to
revoke the inhabitants’ residency. This scenario would apply if East Jerusalem
was to remain under Israeli control.
4 Persons Displaced from the 1967 Territory
This group of individuals was displaced from the West Bank and the Gaza
Strip before, during, or after the 1967 Arab-Israeli war. Over 400,000 persons
belonging to this category left the occupied territory in 1967. It is dicult to
estimate the exact number of those currently displaced, as there is no central
institution dedicated for collecting data regarding individuals belonging to this
group in various parts of the world. Yet if one considers that the population of
the occupied territory has increased over fourfold since 1967 and if this gure
is used as an analogy for the group under consideration, it may be concluded
that the group numbers at least 1.6 million.
Another category belonging to this group consists of inhabitants of the West
Bank or Gaza who were deported by Israel or who have been denied the right
of return since June 1967. The status of the latter category, commonly known
as “identity card losers”, was envisaged to be settled within the ve-year
transitional period following the 1995 Oslo Accords. Oslo provided the basis
for such settlement through the formation of a committee for the purpose.
However, the transitional period has lapsed and the status of this category has
yet to be resolved.
, Population, Housing and Establishment Census-2007: Census Final Results, Ramallah,
In Sep. 1967, Israel estimated that the number of Palestinians in the West Bank and Gaza
at 9099.000 persons: about 599 thousand were enumerated in the West Bank and some
400 thousand in the Gaza Strip. Ibid. At the end of 2014, the number of West Bankers ad
Gazans, as shown above (in the introduction), totaled 4.62 million. That means that the
number of inhabitants has been increased approximately ve times since 1967.
This issue was discussed above, Section 1.
Art. , para. 2; and Annex , Art. 28, para. 3.
United Nations General Assembly, Persons Displaced as a Result of the June 1967 and
Subsequent Hostilities, Doc. //59/118, 15 Dec. 2004. In this resolution (in the
preamble), the Assembly took “note of the relevant provisions of the Declaration of
112-150_Lau et al_Qafisheh.indd 141 3/3/2017 3:38:37 PM
Under international law, these peoples are deemed as ordinary refugees.
A number of General Assembly resolutions regard as refugees those per-
sons “displaced [...] as a result of the June 1967 and subsequent hostilities”.
deals with those persons, in terms of assistance and protection, at the
same footing as those who were displaced in the 1948 war. The High
Commissioner for Refugees does the same with respect to this group of refu-
gees who reside outside areas of operation. This category of persons
has the right of return to the West Bank or Gaza, depending on their ordinary
place of residence prior to displacement.
Once they settle in the State of Palestine and acquire its citizenship, mem-
bers of this group will cease to be refugees. However, if Israel denies them
entry to Palestine in the event of on-going Israeli control of the borders, the
members of the group would continue to be refugees while residing abroad.
Yet if they obtain Palestinian citizenship even before exercising their right of
return to the West Bank or Gaza, these persons can be issued Palestinian pass-
ports, be provided with diplomatic protection by Palestinian diplomatic au-
thorities, and participate in elections, etc.
The State of Palestine (and by extension Israel in case of on-going Israeli
occupation) is obliged under international law to allow this group of persons
Principles on Interim Self-Government Arrangements of 1993 [between Israel and the
] with regard to the modalities for the admission of persons displaced in 1967, and
concerned that the process agreed upon has not yet been efected” (emphasis added).
United Nations General Assembly, Persons Displaced as a Result of the June 1967 and
Subsequent Hostilities, Doc. //56/54, 14 Feb. 2002, para. 3.
United Nations General Assembly, Report of the Commissioner-General of the United
Nations Relief and Works Agency for Palestine Refugees in the Near East, 1 January–
31 December 2013, New York, 2014, Doc. A/69/13. In this report, it was stated that
“UNRWA continued providing humanitarian assistance to [...] persons displaced by the
1967 and subsequent hostilities”.
, Revised Statement on Article 1D of the 1951 Convention, Geneva, 2009, 7–8.
General Assembly Resolution 59/118 (above footnote) rearmed (para. 1) “the right of
all persons displaced as a result of the June 1967 and subsequent hostilities to return to
their homes or former places of residence in the territories occupied by Israel since 1967”
When the 1967 displaced person “returns to the Palestinian territory occupied by Israel
since 1967, [...] he or she would lose his or her refugee character”. , Revised
Statement, above footnote, 8.
According to various legislative instruments applicable in the West Bank and Gaza, all the
1967 territory natives and their decedents, regardless of their place of residence now, are
deemed Palestinian citizens for the purposes of employment, election, and residency. See
legislation cited above, footnotes.
112-150_Lau et al_Qafisheh.indd 142 3/3/2017 3:38:37 PM
to return to their native homes if they choose to do so. This obligation stems
from the right of return in international law, which is based, inter alia, on in-
ternational human rights law, international humanitarian law, resolutions,
natural law, international refugee law, and customary international law (that
cannot be elaborated here). The State of Palestine should also attribute
its citizenship to those returnees who choose its citizenship under the law of
State succession, particularly those who would remain stateless in case of non-
acquisition of Palestinian citizenship. Holding other citizenships should
not derogate from the right to return to the West Bank or Gaza nor from these
persons’ rights to recover their Palestinian citizenship.
Two additional West Bank and Gaza natives have the right to citizenship in
the State of Palestine. One is Jews who were residing in the West Bank or Gaza
as Palestinian citizens before May 1948. And the second includes those na-
tives who left the West Bank or Gaza before the enactment of the Palestinian
Citizenship Order in 1925.
In 1925, there were 7,143 Jews residing in Palestine as Ottoman subjects.
They had then acquired Palestinian citizenship ipso facto based on the
Palestinian Citizenship Order enacted that year. After the establishment of
Israel, this group (including those originally residing in Israel or inhabitants
of the West Bank or Gaza who moved to Israel after the 1948 war) acquired
Israeli citizenship. There are no existing data on this group because Israel
M. Qasheh, “Bases for the Palestinian Refugees’ Right of Return under International
Law: Beyond General Assembly Resolution 194”, Cambridge Journal of International and
Comparative Law, 26 November 2012, available at: http://cjicl.org.uk (visited 12 Sep. 2015).
In this case, the “State of Palestine” (i.e. West Bank and Gaza) would be one of two suc-
cessor States of the predecessor “Palestine” as existed under the British rule (the other
succeeding State is “Israel”). The State of Palestine and the State of Israel are both under
similar obligation vis-à-vis the individuals who held Palestinian citizenship before 15 May
1948, depending on the individuals’ place of residence prior to that date. Although par. 1
of Art. 8 of the International Law Commission’s Draft Articles on Nationality of Natural
Persons in relation to the Succession of States (above footnote) does not oblige the suc-
cessor State “to attribute its nationality to persons concerned if they have their habitual
residence in another State and also have the nationality of that or any other State”; para.
2 of the same article establishes a duty on the successor State to attribute its citizenship
to persons residing abroad who “would otherwise become stateless”. In all cases, these
persons have the right to opt for the citizenship of the succeeding State (in this case the
State of Palestine) if they opt for its citizenship (ibid., Art. 11).
M. Masri, “The Implications of the Acquisition of a New Nationality for the Right of
Return of Palestinian Refugees”, Asian Journal of International Law, 5(2), 2015, 356–386.
M. Qasheh, “Genesis of Citizenship in Palestine and Israel: Palestinian Nationality During
the Period 1917–1925”, Journal of the History of International Law 11(1), 2009, 1–36, 33.
112-150_Lau et al_Qafisheh.indd 143 3/3/2017 3:38:37 PM
does not provide such statistics. Yet one may reach a rough total by comparing
available data that existed at the end of the Mandate with that relating to the
current population of the West Bank and Gaza. In 1947, the number of Jews
who expected to be habitual residents of the Arab State that was proposed by
the Partition Plan was some 10,000, or about 1.4% of the total citizens of the
Arab State. This gure included native and naturalized Jewish Palestinians,
foreigners as well as Jewish refugees who mainly emigrated from Europe to
Palestine during the Second World War. As the West Bank and Gaza con-
stitute about half of the area allocated to the Arab State, half of the above-
mentioned percentage of Jews, or 0.07% of the total population of the West
Bank and Gaza today, would have had the right to remain there. As almost half
of the Jews residing in Palestine at the end of the Mandate were foreigners,
the total number of Palestinian Jews residing in the West Bank and Gaza would
be about 0.035%, or 2,500 persons. Comparing the gures proportionally
with the current population of the West Bank and Gaza, which totals about
4.62 million, and assuming that the number of Jews has increased at the
same rate; the total number of Jews presumed to be Palestinian citizens would
not now exceed 15,000 at best. One third of these would probably be native
Jewish Palestinians and two thirds naturalized Jews. In other words, the total
number of native Jewish Palestinians and their descendants who would be eli-
gible to acquire Palestinian citizenship in the State of Palestine would be ap-
Jewish Palestinians who were resident in the area that became known as
the West Bank, mainly in the old cities of Jerusalem and Hebron, as well as
the Gaza Strip, should be given the right to opt for the citizenship of the State
of Palestine, as in the case of any refugee. These persons could be considered,
in one sense, as “Palestinian-Jewish refugees in Israel” who can return to their
original places of habitual residence in Palestine. They would in that case be-
come dual Israeli-Palestinian citizens. Yet the granting of Palestinian citizen-
ship to members of this group would be somewhat symbolic since, efectively,
United Nations Special Committee on Palestine, Report to the General Assembly, New
York, Doc. A/364, 3 Sept. 1947, 54.
It was estimated that 43% of the Jewish qualied for naturalization in Palestine under the
Mandate did not apply for Palestinian citizenship. Palestine Royal Commission, Report
Presented by the Secretary of State for the Colonies by Command of His Britannic Majesty,
London, His Majesty Stationary Oce, 1937, 332.
M. Qasheh, “Citizens of the State of Palestine and the Future of Palestinian Refugees:
Legal and Political Scenarios”, in Qasheh, Palestine Membership, above footnote 4,
112-150_Lau et al_Qafisheh.indd 144 3/3/2017 3:38:37 PM
only a small number of them would be interested in acquiring such citizen-
ship. There are two reasons for this assumption. One is that this group has
been fully integrated into the Jewish community of Israel, so that one might
be unable to distinguish them from other Israelis for the purpose of develop-
ing criteria for attributing citizenship. The second reason relates to evidentiary
diculties, since most of this group’s members are of the second, third or even
fourth generation for which proof of original pre-Israel citizenship might be
dicult to nd.
Lastly, when Britain applied the Palestinian Citizenship Order in 1925,
it stripped those Palestine natives residing abroad of their Palestinian
citizenship. In 1937, members of this group numbered over 40,000. Some
estimates today predict that their number exceeds 1 million. If one roughly
considers that the West Bank and Gaza to be about 20 per cent of the Mandate
Palestine, no less than 200,000 persons of this category would have the right of
return to the State of Palestine and to acquire Palestinian citizenship, as the
case of other refugees discussed above.
5 Refugees in the West Bank and Gaza
Palestinian refugees who were displaced from the parts of Palestine in which
Israel was established in 1948 compose the largest category of Palestinians.
The number of such refugees registered by is 5.094.886 million
Palestine Royal Commission, above footnote 189, 21.
M. Qasheh, “An Ongoing Anomaly: Pre- and Post-Second World War Palestinian
Refugees”, International Journal of Refugee Law, 27(1), 2015, 52–74, 54–55.
C. Baeza, “Palestinians in Latin America: Between Assimilation and Long-distance
Nationalism”, Washington , The Jerusalem Fund for Education and Community
Development and Institute for Palestine Studies, 21 Nov. 2013, available at http://www
.thejerusalemfund.org (visited 20 Sept. 2015).
E.H. Buehrig, The UN and the Palestinian Refugees: A Study in Nonterritorial Administration,
Bloomington/London, Indiana University Press, 1971; L. Takkenberg, The Status of
Palestinian Refugees in International Law, Oxford, Clarendon Press, 1998; B. Morris, The
Birth of the Palestinian Refugee Problem, 1947–1949, Cambridge, Cambridge University
Press, 2004; M. Bouchard, L’Exode Palestinien: construction d’une représentation occiden-
tale du conlit israéloarabe, Paris, L’Harmattan, 2003; A.M. Lesch & I.S. Lustick, Exile and
Return: Predicaments of Palestinians and Jews, Philadelphia, University of Pennsylvania
112-150_Lau et al_Qafisheh.indd 145 3/3/2017 3:38:37 PM
in 2015. Thousands of other refugees (the exact number is unknown) are not
registered with . According to international law, these refugees have
the right to return to Israel and to become Israeli citizens. Israel will most
likely continue to oppose the right of return to its territory, as it has done for
the past almost seven decades. The obligation of permitting the return of
these refugees lies with Israel, not with the State of Palestine. Yet Palestine (or
the ) would have a historical/political/moral duty to defend their rights.
Palestinian refugees are scattered mainly in Jordan, Lebanon, and Syria, in
addition to Gaza and the West Bank. This study addresses the status of the in-
habitants of the 1967 occupied territory and therefore the status of refugees in
other countries is beyond its scope. Put diferently, refugees in the West Bank
and Gaza are treated here not as refugees per se, but rather as residents of the
State of Palestine.
Refugees of West Bank and Gaza today originally came from the territory of
Mandate Palestine that became Israel in 1947–1949 and afterwards. Members
of this category total 2.020.847 persons in 2015, according , approxi-
mately 43 per cent of the population of the Palestinian territory. In efect,
this group has similar local status to West Bankers, Jerusalemites, and Gazans,
as the case may be.
Technically, had Palestine remained one entity as it was under British rule
before 1948, Palestinian citizens who moved eastwards to the West Bank or
southwards onto Gaza would have been considered as internally displaced
persons. Part of this group still lives in refugee camps, while others reside in
towns. However, in practice, as the West Bank and Gaza were separated
See http://www.unrwa.org (visited 19 Sep. 2015).
K. Lawand, “The Right to Return of Palestinian Refugees in International Law”,
International Journal of Refugee Law, 8(4), 1996, 532–568; J. Quigley, “Mass Displacement
and the Individual Right of Return”, The British Year Book of International Law, 68(1), 1997,
65–125; and F.A. Boyle, The Palestinian Right of Return under International Law, Atlanta,
Clarity Press, 2011.
K.R. Redley, “The Palestinian Refugees: The Right to Return in International Law”,
American Journal of International Law, 72, 1978, 586–614; R. Lapidoth, “The Right of Return
in International Law, with Special Reference to the Palestinian Refugees”, Israel Yearbook
on Human Rights, 16, 1986, 103–125; Y. Tadmor, “The Palestinian Refugees of 1948: The
Right to Compensation and Return”, Temple International & Comparative Law Journal, 8,
Of these: 1.258.559 in the Gaza Strip, and 762.288 in the West Bank. See http://www.unrwa
.org (visited 19 Sept. 2015).
, Palestinians, above footnote 14, 23.
A. Knudsen & S. Hana, Palestinian Refugees: Identity, Space and Place in the Levant,
London, Routledge, 2011.
112-150_Lau et al_Qafisheh.indd 146 3/3/2017 3:38:37 PM
from the parts of Palestine in which Israel was established, these Palestinians
obtained refugee status under international law. Although they have been
treated by the authorities exercising power in the West Bank and Gaza as
de facto equal to the inhabitants (in terms of, for example, residency, iden-
tity cards, passports, election, public employment), members of the group are
registered by as refugees. Such persons are at the same time citizens
of the West Bank or Gaza and refugees. As citizens, they have a status akin to
the native inhabitants of these two areas. As refugees, they are entitled
to the rights enjoyed by other refugees: ’s protection, return to Israel,
Despite their integration into the local population, the members of this
group should continue to be considered under international law as refugees
for certain purposes, such as the right of return and being eligible for ’s
protection/assistance, and as dual citizens. These refugees are at the same time
de facto, or according to the local law, citizens of the territory, and citizens of
Israel in the sense that they have a right to become citizens of Israel based on
the law of State succession and other branches of international law pertaining
to the right of return. Yet Israel refuses to grant refugees Israeli citizenship
or to let them return to their homes in its territory.
In other words, this group has simultaneously three separate statuses:
(1) Refugee status in accordance with international law and the practice of
(2) West Bank and Gaza citizenship (or citizenship of the State of Palestine)
by virtue of the applicable local law in the West Bank, East Jerusalem, and
Gaza, and the practice of local authorities therein;
(3) Israeli citizenship, although non-efective at present, based on interna-
Under the citizenship law of the State of Palestine, this group should be eli-
gible for the citizenship on the same basis as the West Bankers and Gazans.
However, the question of their refugee status should continue to be raised.
Above Sections 1 and 2.
L. Takkenberg, “The Protection of Palestine Refugees in the Territories Occupied by Israel”,
International Journal of Refugee Law, 3(3), 1991, 414–434.
Above Section 4.
Members of the group who now reside in East Jerusalem should be treated as mentioned
in Section 4 above, notwithstanding their right of return to their original places of resi-
dence inside Israel.
112-150_Lau et al_Qafisheh.indd 147 3/3/2017 3:38:37 PM
Palestine would, in one sense, serve as a host State for these refugees as the
case of other host countries.
Some might fear that the refugee status of the group, should they acquire
Palestinian citizenship, would be efectively ended. That is not accurate. Under
international law, their refugee status would persist. They would therefore con-
tinue to receive aid and be entitled to claim the right of return. The
ought to continue defending the rights of these refugees in international
forums in its capacity as the representative of the pre-1948 Palestinian people.
The granting of citizenship to this group would in no way, from a legal per-
spective, undermine their status. Israel would continue to oppose their return,
regardless of whether the group acquired other citizenship(s) or not. Thus, the
acquisition of the citizenship of the State of Palestine would not per se be a
reason for ending the group’s refugee status. Indeed, most Palestinian refugees
have acquired citizenships of other States (with the exception of the refugees
in Lebanon and Syria) and these naturalized persons, in the eyes of interna-
tional law, are still refugees. Their right of return is still on the international
agenda and ’s assistance is still in place—for example, in Jordan refu-
gees are assisted by despite holding Jordanian citizenship.
The State of Palestine as recognized by the United Nations General Assembly
on 29 November 2012 is obliged, under international law, to confer its citizen-
ship to all natives of its territory (the West Bank and Gaza Strip). The starting
day for these natives who would be eligible for Palestinian citizenship is the
date of succession of the West Bank and Gaza from the mandated-territory of
Palestine, namely 15 May 1948. Individuals who acquired the status of perma-
nent residents in Palestine’s territory since then, regardless of the acquisition
mode of that status, would qualify for Palestinian citizenship today. That status
might have been conferred by any authority that exercised juridical power in
the West Bank and Gaza, including Jordan, Egypt, Israel, and the Palestinian
Authority. The State of Palestine can regulate its citizenship based on this gen-
eral principle by enacting a law to that efect.
Qasheh & Azarov, “Article 1D”, above footnote 138, 549.
A.F. Kassim, “The Palestine Liberation Organization’s Claim to Status: A Juridical Analysis
under International Law”, Denver Journal of International Law and Policy, 9(1), 1980, 1–34.
A. Khalil, “Palestinians to Citizens: Is Citizenship a Solution to the Palestinian Refugee
Problem”, Middle East Law and Governance, 6(3), 2014, 204–224.
112-150_Lau et al_Qafisheh.indd 148 3/3/2017 3:38:37 PM
Nonetheless, the legal regulation of Palestinian citizenship would not be an
easy or a merely technical matter. Various groups of individuals who belong to
the West Bank or Gaza by one way or another might be in a position to claim
such a citizenship. Two groups would have clear-cut link to the territory and
can acquire an ipso facto Palestinian citizenship, namely those originated from
the West Bank or Gaza since the separation of Palestine from the Ottoman
Empire when Palestinian citizenship was rst regulated in 1925 and who are
still residing in one of these two areas.
The status of other groups who relate to the State of Palestine must be care-
fully annualized before acquiring Palestinian citizenship. These are the inhab-
itants of East Jerusalem, refugees who expelled from the territory of Israel since
1948 and settled in the West Bank or Gaza, West Bankers or Gazans who lost
their residence in these two areas at any point since 1925 and were prevented
by Britain (1917–1948) or by Israel (since 1967) to return, and Jewish-Palestinian
natives of the West Bank or Gaza who lost their residence therein since 1948.
This article has merely tried to shed light on the status of these various groups
for citizenship-conferring purposes in the State of Palestine.
112-150_Lau et al_Qafisheh.indd 149 3/3/2017 3:38:37 PM
112-150_Lau et al_Qafisheh.indd 150 3/3/2017 3:38:37 PM