Nineteen years after President George Bush Sr. brought Israel and the Arab world together to negotiate
an end to Israel's
occupations of Palestinian and Syrian territory, the United States is still at it. The current Palestinian-Israeli talks are
still based on the original formula of creating two ethnic states without two
exclusive populations. But perhaps it is
time for the US (and the parties) to explicitly consider the creation of two
multi-ethnic states, not just to respond to both sides concerns, but to create
a better chance of creating a sustainable and less objectionable peace.
The need to reject ethnic "statelets" takes on added impetus
in light of Israeli Foreign Minister Avigdor Lieberman's speech before the
United Nations General Assembly. Decades
after the end of apartheid in South
Africa and after the rejection of ethnic
cleansing or population transfers in the Balkans, the Israeli Foreign Minister
spoke approvingly of returning to policies that have led to war and
There is an alternative.
Of the core issues standing in the way of resolving the
Israeli-Palestinian conflict, borders, refugees, and settlers have emerged as
intractable and zero-sum in nature. The key to peace is to transform zero-sum
issues between the parties into workable solutions that address at least some
of the concerns of all constituencies, while staying true to international
norms. Negotiators have made little to no advances on key issues, including:
where the border will be; what the final destiny of Palestinian refugees and
their descendants will be; whether each side can recognize the others' right to
self-determination within only a portion of the land they both claim; whether
the parties can reconcile their national narratives with international law; how
each state can reconcile its nationalist nature with the rights of its
significant minorities; whether Israel can be a Jewish state as defined by the
Israeli right and still be a democracy; and
what happens when the Arab minority in Israel grows closer to being a
These problems have been made inexorable in part by an
assumption of nationalist exclusivity and by the national narratives of both
people. Most Israeli Jews do not recognize the need for a Palestinian state as
one of Palestinian rights but as a necessity of Jewish demographics. The
argument of Israeli leaders from Yitzhak Rabin to Ariel Sharon and Ehud Olmert
has been that in order for Israel to maintain its Jewish character it must
divest itself of non-Jews. The only internationally-acceptable way to do that
is by creating a Palestinian state in parts of the West Bank and the Gaza
For their part, Palestinians do not recognize the right of
Jews to self-determination in all of historic Palestine. Because of the balance
of power heavily weighted in Israel's favor, the majority of Palestinians
choose to exercise their right to self-determination in only 22 percent of
historic Palestine (the West Bank, including East Jerusalem, and the Gaza
Strip). Many Palestinians may accept Israel's right to exist, but they don't
accept a superior Jewish right to self-determination over Haifa than for the
Palestinian inhabitants who lived there in 1947 or who live there today.
It is clear to anyone from Israel and Palestine that both
peoples hold to a nationalist narrative tied to all of Eretz Israel/historic
Palestine. The problem is not so much that their maps don't acknowledge the
other state - it is that they both have the exact same map (minus the Golan
Heights for the Palestinians).
That fact cannot be discounted, nor should it.
There are ways for Israelis and Palestinians to have their
cake and eat it too - still within the rubric of a two-state solution and still
within the confines of their nationalist narratives. There are ways for
settlers to maintain their ties to the "Land of Israel" and for Palestinian
refugees to re-establish their relationship to "historic Palestine."
A Permanent Residency Status can help expand the pie by
offering a new and creative solution that adds flexibility and space to final
status issues. A Permanent Residency Status law can be composed of a set of
mutually agreed upon arrangements between the state of Palestine and the state
of Israel. It opens the space to separate the material livelihood and political
aspirations of both peoples, leading to a sustained national majority in the
political system of each state, while making the physical movement of people a
matter of personal choice [i].
Ever since the construction of the barrier in the West Bank
and the Palestinian and Israeli crackdowns on attacks on Israel from both the
West Bank and the Gaza Strip, Israelis have lost their sense of urgency in
resolving the Israeli-Palestinian conflict.
They do not see Palestinians; they do not immediately feel threatened by
them. Yes, a majority believes in a two-state solution, but they believe they
have a hundred years to resolve this issue. Secretary of State Clinton
unconsciously echoed this in her recent comments with Israeli President Shimon
Peres in which she said the status quo was unsustainable - but could be
continued for years. This lack of
urgency is an illusion, of course, but nevertheless it is a dominant
The real emerging question in Israeli society is not what to
do with Palestinians in the West Bank who are cordoned off behind walls,
fences, and checkpoints, but what to do with the Palestinian minority who live
in Israel as Israeli citizens. This is what drove the accession to power of Lieberman
and his party, Yisrael Beiteinu, on a platform of law proposals such as the "Loyalty
Oath" and the "Nakba Law," both aimed at curbing dissent by Israeli-Arabs [ii]
and enforcing restrictions that are presented as saving Israel's nature
as a Jewish state.
The Israeli Jewish fear of the potential emerging power of
the Palestinian Arab minority in Israel is real. These Palestinians hold
Israeli citizenship, vote in Israeli elections, speak Hebrew and Arabic, but
are effectively second-class citizens demanding a fully equal voice in
The link between this fear and the two-state solution
emerged in Prime Minister Benjamin Netanyahu's speech at Bar
last year and continue to do so in his addresses in the United States.
He demanded Palestinian and Arab state recognition of Israel as a Jewish state
as if this would cement the nature of the state of Israel forever. On the
surface, this is a moot demand, as every sovereign state by definition
determines its own character. Only the most insecure government asks other
states to recognize the nature of its state, but that is the point. Put in
context of the Palestinian minority in Israel and the Palestinian refugees'
demand to return to the homes and towns they came from, the real essence of the
demand becomes clear.
Since March 2002, Palestinian leaders have consistently and
publicly advocated for a "just and agreed" resolution to the plight of
Palestinian refugees. In private and in many second-track negotiations prior to
this time, these same leaders have attempted to barter the return of East
Jerusalem in exchange for an affirmation of Palestinian refugee suffering along
with restitution and compensation. Yet, in a real-life situation where a full
peace agreement is on the table, it remains unclear whether that bargain can
stand, even if Palestinians were to somehow get Israeli leaders to actually
In contrast to the negotiations, Palestinian rights-based
activists around the world continue to demand the right of Palestinians to
return to Israel with full citizenship rights.
The Palestinian refugee and Diaspora community was the core
of the Palestinian nationalist resistance for decades before the first Intifada
shifted its focus to the Palestinian Occupied Territory. Without clear guidance
from Palestinian leaders or realistic options, Palestinian demands for right of
return remain easily manipulated by politicians or activists either as a
politically correct way of arguing against a two-state solution or as a
bargaining chip for territorial final-status issues.
The Palestinian citizens of Israel are ignored in this
process. At this point, they neither want to be represented by the Palestinian
leadership(s) in the West Bank and the Gaza Strip, nor to give up their Israeli
citizenship, nor to remain second-class citizens. In many ways, they have become the most
politically sophisticated Palestinians.
Breaking the Deadlock
Simply put, Permanent Residency Status will give the option
for individuals to choose to live their material lives in one state: own land
and property, pay taxes, abide by the laws of that state, enjoy equal rights
and vote for their municipal leadership; while at the same time, exercising
their ultimate political aspirations in their respective national government,
even if they choose not to reside within its geographic boundaries. This would
be a profound break from the zero-sum nature of the conflict.
This must be a tool of choice, not enforcement. The
complexities and details of the Permanent Residency Status need to be negotiated
and coordinated between the two national groups and the international community
in a comprehensive peace agreement. In the context of two nation states with
such intermingled communities and yet-to-be recognized borders, this tool creates
enough space for both peoples' needs and rights to be accommodated.
Regarding Citizenship in the Context of State Secession
Unlike many proposals put forth to address refugee and
residency issues in Israel and Palestine, Permanent Residency Status is in
accordance with international law on citizenship. Under international law, a
state has the authority to grant citizenship pursuant to its own individual
criteria. Among those international organizations and institutions that have adopted
non-binding declarations concerning citizenship within the context of state
the declarations generally discourage discrimination in determining citizenship
in the context of the break up of a state (state succession), and advocate for
a system that provides individuals affected by the state succession with an
option to freely choose their future citizenship [iv].
While these declarations can provide guidance for states addressing citizenship
rights, it should be noted that there are no universally accepted international
law norms or standards regarding citizenship within the context of state
succession, states that gain independence generally confer citizenship on those
persons who resided in the region prior to independence. Some states
have additionally extended citizenship to nationals of the other neighboring
state or states involved in the succession. Non-binding international
declarations also presume that persons who have their habitual residence in the
territory that secedes acquire the nationality of the new successor state, but
indicate that principles of citizenship in state succession should be
dictated by "respect, as far as possible, [for] the will of the person
Furthermore, with regards to the effect
of an individual's choice of citizenship after succession, the Venice
Commission Declaration also counsels against attaching consequences to
individuals or their property based
on the individual's choice of nationality [vi].
Regarding Permanent Residency
Under international law, states also have the authority to
define the right of foreign nationals to live, work and own property in the
state pursuant to its own individual criteria. Some states have created
restrictive permanent residency laws that limit the rights of foreign nationals
to reside and work in the state. Common restrictions include quotas, work
qualifications, proof of employment, and temporal limits on visits by
non-nationals. Other states have entered into bilateral or multilateral
treaties that grant certain foreign nationals the same rights as citizens of
the state, with or without the exception of voting rights. Bilateral agreements
between states granting full rights to permanent residents are common in the
context of state secession and independence.
In the context of a future peace agreement between Israel
and Palestine, the Permanent Residency Status choice can be offered to three
existing communities: Jewish settlers in
the West Bank, Palestinian refugees and Israeli-Arabs (Palestinians).
Jewish Settlers in
the West Bank
The Jewish community residing in the occupied West Bank is
diverse in its politics and religious beliefs. They are all citizens of Israel,
with about half living outside the boundaries Israel recognizes as its own (the
West Bank was never annexed by Israel) and the other half living in East
Jerusalem (which Israel considers part of its legal boundaries). While many
land-ownership issues must be resolved in negotiations, particularly around the
confiscation of private property, the mere presence of Jews in the geographic
boundaries of the State of Palestine should not impede peace.
It would be an attractive offer to many settlers to provide
them with the opportunity to remain in their homes with Permanent Residency
Status in Palestine. The opportunity to still remain physically tied to the
land of Judea and Samaria, to own property, to enjoy religious freedom, to vote
in local municipalities and to enjoy equal rights with Palestinian citizens of
the state while retaining their Israeli citizenship and exercising their
political aspirations in Israel might be an option taken by many. Many states
have created similar permanent residency options in the context of state
secession. For example, the Treaty between
the Republic of Belarus and the Russian Federation on Equal Rights of Their
Citizens [vii] guarantees
citizens of either state a wide range of permanent residency rights if they
chose to reside in the other state. These rights include the right to
participate in economic activity, the right to own property, the right to all
civil rights and freedoms as provided by the legislation of either state, equal
access to social services, and the right to education and unemployment.[viii]
The Palestinian state could also offer settlers the
opportunity to apply for Palestinian citizenship for those who wish to fully
participate in Palestinian national life. After secession or independence, many
states have given persons residing within their territory the option to apply
for full citizenship. After Montenegro
declared independence and withdrew from the state union of Serbia-Montenegro,
the Serbian government amended its citizenship laws and allowed Montenegrins
who had a registered residence in Serbia during the union to apply
for Serbian citizenship [ix].
Palestinian citizenship has rarely been identified in exclusive ethnic terms
and Palestinian leaders like Salaam Fayyad and Ahmed Qurei have repeatedly
noted that Jews would be welcome to be Palestinian citizens.
There are an estimated 4.56 million registered Palestinian
refugees (as of 2007) residing in the Middle East and elsewhere and more that
consider themselves refugees but who are not registered with the United Nations.
Of these, approximately 133,351 were born before June 1948. Because of the age
of the first generation refugees, these numbers are now declining rapidly. The
right of return is one of the main issues seen as a zero-sum game.
If you ask Israelis 'why not right of return?' they will
tell you that the return of millions of Palestinian refugees into Israel is
equal to the end of Israel as a Jewish state, as this will create a non-Jewish
voting majority. They are correct.
When you ask Palestinians 'why not give up the right of
return?' they will tell you that it is a basic human right, enshrined in UN
resolutions and guaranteed to other refugees in other conflicts, that they be
allowed to return from the land they grew up in and from which they were
expelled or fled in wartime. They are also correct.
But what if, within a context of a peace agreement between
the two states, and as part of a comprehensive peace with all the Arab states,
Palestinian refugees wishing to exercise their right of return into Israel are
granted Permanent Residency Status as a means of providing them with
restitution and residency? This will be an implementation of their right of
return; yet will not change at all the electoral demographics and future of the
State of Israel as a Jewish State.
citizens of Israel
Israeli-Arabs (Palestinians), a minority of about 23 percent
in Israel, must conduct a difficult balancing act between respecting their
citizenship in the State of Israel, and their common national and cultural
heritage with the remainder of the Palestinian people. While subject to
discrimination in Israel, they nevertheless enjoy rights most Palestinians
elsewhere in the Middle East do not. They own property, vote and have national
representation in the government. While struggling to overturn discriminatory
practices, this community also protests the Israeli occupation of the
Palestinian people and territories, in solidarity with their Palestinian
brethren. It is no surprise then that many of the Jewish majority in Israel
remain suspicious of their intentions and want them to demonstrate loyalty to
the State. It is also no surprise that they in turn are suspicious of Israeli
If a permanent status agreement resulted in two nation
states along the 1967 border with two intermingled populations and a Permanent
Residency Status in both countries, a fair choice could then be offered to
Palestinians in Israel. They could choose to maintain their citizenship in
Israel and become full Israeli citizens with all the rights and obligations
that entail to any Israeli citizen including military or national service. There
is already precedence for this in the case of the Arab Druze community in
Israel. If they choose to become Palestinian citizens, they could assume
Permanent Residency status and they (and their offspring) would continue to
live, work, and pray in Israel but would vote in Palestinian national
Many states with common heritages and linked economies have
reached bilateral or multilateral agreements allowing each state's citizens the
freedom to reside, own property and vote in local elections in one state while
retaining citizenship and the corresponding right to vote in national elections
in another state. The Scandinavian states of Sweden,
Finland, Denmark, Iceland
through the formation of the Nordic Passport Union, allow citizens of any state
to reside and work in another state while retaining their national citizenship [x].
Through domestic legislation, each state also allows residents who are citizens
of another Nordic Passport Union state the right to vote in municipal elections
while residing in the state [xi].
It has to be emphasized that contrary to the wishes of some
right-wing politicians in Israel, it is absolutely prohibited in international
law to forcibly de-nationalize the Palestinian minority or to create
restrictive conditions that would ultimately serve the same purpose. This would
have to be a genuine choice that would allow each individual to live in accordance
with their own definition of identity.
In the case of both Jewish settlers and Palestinian
refugees, the implementation of such a solution would need to be negotiated
between the two states. In the case of Palestinians who are already citizens of
Israel, their representatives will need to be brought into the discussion and
have a determinative voice in any application of this principle as it directly
impacts on their interests.
Moreover, in a regional context, the Permanent Residency
Status offers a tool for treatment of Palestinian refugees in neighboring
countries such as Jordan, Syria and Lebanon. Palestinian refugees, choosing to
remain in their current locations can obtain Palestinian citizenship and also
be offered permanent resident status in their host countries.
There are obvious challenges to such a model but also
obvious benefits. The benefits include reinforcing international legal
principles while remaining true to the concept of a two state solution. It
provides two powerful constituencies (settlers and Palestinian refugees)
options that take into account their concerns. It secures the interests of the
often-ignored Palestinian minority in Israel and the Jewish majority at the
same time. It overcomes deep-seated suspicions among the two communities of
each other. It prevents forced population transfers. It strengthens both Israel
and Palestine as multi-ethnic states even as they preserve their national
identities. It reduces the complexities in negotiating any changes to the 1967 border.
Finally, it builds in a necessary normalization component between the two
states as they must interact with each other on a regular basis.
The challenges include overcoming the bigotry inherent in
both communities in the short term. It will require Palestinians to acknowledge
the emotional (if not legal) ties of the Jewish settlers to Palestinian land
and requires Israelis to acknowledge the humanitarian and legal consequences to
the Palestinian civilian population in the wake of the creation of Israel as
well as their ties to Israeli land. It will also require front-loading more
robust international security guarantees as was done by the international
community for Bosnia and Kosova.
Granted, the Permanent Residency Status is a complex idea.
Much in depth legal and practical analysis will be required in developing this
tool. But an Israeli Palestinian peace must bring both states into the 21st
century. French and German citizens today easily travel, work and live in both
countries, enjoying equal rights, while remaining true to their mother
country's citizenship despite their far more violent and destructive history
with each other. The idea of population transfers, colonization, and "pure"
ethnic states belong to a disastrous by-gone era.
Mickey Bergman is the
Director of Middle East Programs at the Aspen Institute. He is the Founder and
President of Solel Strategic Group and a former officer in the Israeli Defense
Amjad Atallah is co-director of
the Middle East Task Force at the New America Foundation and an editor of the
Middle East Channel at ForeignPolicy.com.
He was a legal advisor to the Palestinian negotiating team from
[i] The authors wish to thank Meghan Stewart and Kerstin Mikalbrown of the Public
International Law and Policy Group for their assistance with legal research for
Israeli Jews refer to the Arab minority collectively as Israeli-Arabs. The Arab minority often refers to itself as
Palestinian citizens of Israel. The two
expressions are used interchangeably in this article.
[iii] "The expression 'State succession' refers
to the replacement of one State by another in its responsibility for the
international relations of territory. It comprises, in particular, annexation,
union, dissolution and separation." Declaration
on the Consequences of State Succession for the Nationality of Natural Persons,
European Commission for Democracy through Law Part I (1) (Sept. 13-14, 1996).
European Commission for Democracy through Law, also known as the Venice
Commission, is a body of independent senior legal experts established by the
Council of Europe. Their legal opinions are highly respected by governments and
international bodies. In 1996, the Venice Commission
adopted the Declaration on the Consequences of State Succession for the
Nationality of Natural Persons (Venice Commission
Declaration), which urges states to respect the principle that everyone has
the right to a nationality. The Venice Commission Declaration urges
successor states to grant nationality to everyone who meets its criteria,
without discrimination based on ethnicity, race, religion, language, or
political opinions. See Venice Commission, Declaration on the
Consequences of State Succession for the Nationality of Natural Persons,
European Commission for Democracy through Law Part III (8b) (Sept. 13-14,
1996). Similarly, the International Law Commission's Nationality of Natural
Persons in Relation to the Succession of States (ILC Draft Articles)
provides that every individual holding the nationality of the predecessor state
at the time of succession has the right to the nationality of at least one of
the states concerned. The ILC Draft Articles further prohibit
discrimination and arbitrary decisions concerning nationality, and presume that
persons who have their habitual residence in the territory that secedes acquire
the nationality of the successor state. See International Law
Commission, Nationality of Natural Persons in Relation to the Succession of
States arts. 1, 5, 15, 16 (1999), available here.
[v] Venice Commission, Declaration on the
Consequences of State Succession for the Nationality of Natural Persons,
European Commission for Democracy through Law Part II (5) & (6) (Sept.
13-14, 1996) (quoting Article 2.1(b) of the Vienna
Convention of 1978 on Succession of States in Respect of Treaties and Article
2.1(a) of the 1983 Vienna Convention on Succession of States in Respect of
State Property, Archives and Debts)). See also Venice Commission,
Declaration on the Consequences of State Succession for the Nationality of
Natural Persons, European Commission for Democracy through Law Part V (15) (16)
(Sept. 13-14, 1996), available here.
[vi] Venice Commission, Declaration on the Consequences of State
Succession for the Nationality of Natural Persons, European Commission for
Democracy through Law Part V (15) (16) (Sept. 13-14, 1996)
[vii] Treaty between the Republic
of Belarus and the Russian Federation on Equal Rights
for Their Citizens (Russian Federation,
Belarus, 1998), available here.
[viii] The treaty specifically
provides for the following rights:
Art. 2: The
citizens of Belarus and Russia have equal rights to participate in economic
activities in the territory of the Contracting Parties.
Art. 3: The citizens of Belarus and Russia enjoy
equal civil rights and freedoms, as provided for in the legislation of the
Art. 4: The Contracting Parties shall ensure
accessibility and equal rights for citizens in obtaining secondary, secondary
vocational, higher and further vocational education. Applicants shall be
admitted to educational institutions in accordance with existing entrance
Art. 5: The exchange of living accommodation between
the citizens of Belarus and Russia
shall be effected without impediment in accordance with national legislation
and serve as grounds for issuing them with permits for permanent residence in
the territory of the Contracting Parties.
Art. 6: The Contracting Parties shall ensure equal
rights for their citizens in obtaining, owing, using and disposing of property
in their territory. National legislation on privatization shall regulate how
citizens can receive state and municipal property free of charge, or obtain it
in accordance with benefits effective in the privatization process.
The Contracting Parties shall
ensure guaranteed protection of their citizens' ownership rights.
Art. 7: The Contracting Parties shall ensure that the
citizens of Belarus and Russia have equal rights to employment, pay and the
provision of other social and legal guarantees in the territory of Belarus and
Russia. The citizens of Belarus and Russia have equal rights in pay, working
time and rest time regulations, labour protection and working conditions, and in
other matters pertaining to labour relations. Labour activities shall be
regulated on the basis of labour agreements (contracts) in accordance with
labour legislation. The contracting parties shall ensure mutual recognition of
the length of service, including the length of service calculated on
preferential terms and the length of service in a particular profession gained
in connection with the citizen's labour activities.
Art. 8: Equal rights to social provisions, medical
help and access to services offered by medical and health care establishments
in the territory of the Contracting Parties shall be ensured for the citizens
of Belarus and Russia. There shall be no mutual settlements for the provision
of urgent medical assistance and the treatment of illnesses of social
Treaty between the Republic of Belarus and the Russian
Federation on Equal Rights for Their Citizens (Russian Federation, Belarus, 1998), available here.
Government, Application of Montenegrin Citizens for Obtaining Serbian
Citizenship Underway (Jul. 4, 2006), available here;
see also Immigration and Refugee Board of Canada, Serbia: Rights of
Montenegrin Citizens Who Live in Serbia Since the Independence of Montenegro in
June 2006 (Dec. 16, 2006), available here.
[x] Protocol concerning the exemption of nationals of
these countries from the obligation to have a passport or residence permit
while resident in a Scandinavian country other than their own (Denmark, Finland, Norway & Sweden, 1954), available here.
[xi] See Harald
Waldrauch, Electoral Rights for Foreign
Nationals: A Comparative Overview of Regulations in 36 Countries, European Centre for Social Welfare Policy and
Research, (February 2003), available here.